Is Justice Scalia Warming To Separation Of Church And State?

photo of Justice Antonin Scalia
Justice Antonin Scalia

Justice Antonin Scalia, one of the members of the conservative block on the United States Supreme Court, gave a speech Wednesday where he seemed to be supporting the separation of church and state. Which is odd because he has been one of the justices who wants to limit the scope of the 1st amendment so narrowly that it really means nothing. Is Justice Scalia warming to separation of church and state?

“No principle of democracy is more fundamental than has what become known as the separation of church and state,” [Justice Antonin] Scalia said.

The conservative justice lamented about the need for a balance in the separation of church and state. But he also criticized what he said was a growing effort to quash religion in politics and stressed the importance of religious freedom.

“There are those who would have us believe that the separation of church and state must mean that God must be driven out of the public forum,” Scalia said. “That is simply not what our Constitution has ever meant.”

But Scalia also warned that a religious pre-occupation with the government “will destroy the church.”

U.S. Supreme Court Justice Scalia talks state, church during speech

WHAT?? Scalia now supports separation of church and state and feels it is a fundamental principle of democracy?

Well, yes and no. His speech at Colorado Christian University was just like speeches he has given before where he supports separation of church and state as long at it applies only to balance all the different religions. He has never believed that separation of church state would mean protecting the non-religious like atheists and agnostics.

From 2004:

U.S. Supreme Court Justice Antonin Scalia said Monday that a religion-neutral government does not fit with an America that reflects belief in God in everything from its money to its military.

“I suggest that our jurisprudence should comport with our actions,” Scalia told an audience attending an interfaith conference on religious freedom at Manhattan’s Shearith Israel synagogue.

In the synagogue that is home to America’s oldest Jewish congregation, he noted that in Europe, religion-neutral leaders almost never publicly use the word “God.”

But, the justice asked, “Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America? I don’t think so.”

Scalia told them that while the church-and-state battle rages, the official examples of the presence of faith go back to America’s Founding Fathers: the word “God” on U.S. currency; chaplains of various faiths in the military and the legislature; real estate tax-exemption for houses of worship – and the phrase “under God” in the Pledge of Allegiance.

Justice Scalia Rejects Separation of Church and State

Scalia’s reasoning is full of false assumptions. Europe was not religiously neutral before the Holocaust nor is it today. Most European countries have a state established and supported church.

God on the currency and in the pledge or tax exemptions for churches do not go back to the country’s founding. These encroachments on the 1st amendment came later as the religious attempted to impose their beliefs on the public through the government. It is this encroachment that Scalia now uses to justify his support for government expressions of religion.

Scalia criticized the court for adopting the principle of neutrality, which holds that government should not take sides on theological matters.

“This is not an accurate representation of what Americans believe,” he said. “The court itself has contradicted that principle a number of times, including the case approving tax exemptions for houses of worship and cases approving paid chaplains in state and federal legislatures. More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.”

Asked about the role of religion in public life, Scalia said, “It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.”

Scalia insisted that generic references to God by government are perfectly constitutional and theologically desirable.

Scalia Says Government Is Free To Prefer Religion Over Non-Religion

Legal scholars have pointed out that Scalia uses a coercion test on church and state conflicts. He believes that unless the state forces one to pray or support a particular religion then religious expressions in government are permissible.

He also is an “originalist” when it comes to the US Constitution. If the words aren’t in the document then they don’t exist or something is judge based on what the authors of the document thought back in the 1790s. That can be a problem.

But the Greece Court did not split 5-4 on the question of coercion. Two justices, Scalia and Thomas, did not join the part of Kennedy’s opinion that addressed coercion. For Scalia and Thomas, coercion was not relevant. It was enough then for the five justices forming the majority to decide the case by holding that legislative prayer existed at the framing, and was at that time deemed unproblematic (or so these non-historian originalists assure us). It is surely worth recalling that other practices that much agitated public debate in the 1780s and 90s were also widely considered not constitutionally infirm when the ratifiers’ votes were newly counted.These practices include genocidal Indian removal, the African slave trade and hereditary race based slavery in the New World, disenfranchisement and coverture for women, physical chastisement of servants by masters, and capital punishment for dozens of offenses, some of which are now considered malum prohibitum not malum in se. Widespread tolerance of grotesque inhumanity under the Constitution in 1788 and 1791 convinces me that for all the hazards of the Wall Metaphor, the Lemon Test, the Endorsement Test, and the Coercion Test, the newly minted “Was it – Or Does the Court Think it Was – Considered Constitutionally Permissible in 1788 or 1791 Test” is the least palatable option on the Supreme Court’s Establishment Clause menu. I would not choose it, and I grave concerns about the moral implications of embracing a constitutional regime as permissive of government-sanctioned public religiosity as the one this so called test portends.

Even assuming a Court with a better track record of historical accuracy and greater likelihood of avoiding writing history that is tendentious or mistaken, there are pressing reasons to shy away from originalism as a bellwether of constitutional orthodoxy. Consider the admonitions of that arch disestablishmentarian, Thomas Jefferson, who while rejecting casual constitutional revision, reminds us that “Laws and institutions must go hand in hand with the progress of the enlightened human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” (Letter from Jefferson to Samuel Kercheval, July 12, 1816.)

Alarm Bells for Disestablishmentarians: Town of Greece v. Galloway and the Supreme Court’s Ominously Deterministic New Originalism

Then we have Scalia’s misunderstanding of history:

Scalia posited that America’s growing skepticism is what enables the Supreme Court’s current, unique religious composition.

“The fact that the Supreme Court consists of — what now? — six Catholics and three Jews: I would like to believe that it’s because of more religious toleration, but I think it’s actually because of indifference.”

Scalia went further, drawing on the evidence of the Gospels to support the notion that the church and state hold authority in separate realms. Christ’s words and actions, he said, make it clear “that the state is not the source of man’s power, nor of his religion. … Its focus should not be with the hereafter, but with the here: ensuring a safe, just and prosperous society.”

Scalia was quick to say, however, that the distinct roles of church and state do not mean that the one cannot influence the other; in this regard, “our constitutional law has been greatly distorted. … [The notion that] our Constitution forbids anything that favors religion over non-religion is a lie.”

Religion always has and always will influence politics. “From abolition to prohibition,” he said, “the secular beliefs that Americans have voted for, or indeed have died for, have often been … [based] on religious beliefs.”

At the same time, as it influences civil affairs, Christianity commands citizens to offer obedience to lawful civil authority. It is a concept with which some Americans are uncomfortable, Scalia said. “We are a nation largely settled by those fleeing from political regimes, and there is in our thinking a deep strain that looks upon government as a necessary evil. … [But] government has a moral claim, that is, a morally prescribed claim on our obedience.”

This raised the inevitable question: What happens when a Catholic’s morality and the demands of his life as a citizen come into conflict?

Scalia’s answer was characteristically blunt. “You have to decide if this is a thing that God has commanded, and if it is, you have to ignore Caesar. Go to jail; go be executed. … But be careful how you decide!”

Supreme Court Justice Antonin Scalia Takes Aim at the Separation of Church and State

The reason the court has six Catholics and three Jews is because the courts enforced laws that prohibited religious discrimination. Early American history is riddled with ugly discrimination against Catholics and Jews.

Scalia should read up on the Philadelphia Bible Riots, the debates over the Blaine Amendments most states still have in their constitutions, and the history of the establishment of Catholic schools that Scalia himself attended.

So no, Justice Antonin Scalia is not warming to the separation of church and state this country needs. He doesn’t believe in true religious neutrality by the government. In fact, Scalia is hostile to the non-religious and would rule to support religious privilege.

This is proof once again that Scalia’s religion blinds him to what is really important to the country as a whole and makes him unfit to be on the Supreme Court.


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