Why Scalia says government should favor religion over nonreligion

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Caricature of Justice Antonin Scalia by DonkeyHotey. Via Flickr creative commons https://www.flickr.com/photos/donkeyhotey/8274860063/.

Caricature of Justice Antonin Scalia by DonkeyHotey. Via Flickr creative commons https://www.flickr.com/photos/donkeyhotey/8274860063/.

Caricature of Justice Antonin Scalia by DonkeyHotey. Via Flickr creative commons https://www.flickr.com/photos/donkeyhotey/8274860063/.

Caricature of Justice Antonin Scalia by DonkeyHotey. Via Flickr creative commons https://www.flickr.com/photos/donkeyhotey/8274860063/

Guest post by Daniel Bennett

U.S. Supreme Court Justice Antonin Scalia told a small audience in Louisiana this weekend that the government was not required to remain neutral on matters of religion. In fact, God, according to Scalia, had been good to America because of it.

“God has been very good to us,” Scalia said. “That we won the revolution was extraordinary. The Battle of Midway was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name we do him honor. In presidential addresses, in Thanksgiving proclamations and in many other ways.”

Scalia told the audience at Archbishop Rummel High School in Metairie, La., that government can (and should) favor religion over nonreligion. He sharply criticized his colleagues on the Court for their decisions to the contrary.

“Don’t cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it,” he said.

While the statements made headlines, they were not surprising to court observers. Scalia holds to an accommodationist view of church-state relations. Accommodationists call for a limited reading of the First Amendment’s Establishment Clause, which states, “Congress shall make no law respecting an establishment of religion.”


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Accommodationists agree that the Establishment Clause prohibits the federal government from, say, supporting a national church. But as far as general support for religion, such as displaying the 10 Commandments in courtrooms or praying in public schools? This is perfectly compatible with the First Amendment, they say.

Scalia has taken this position in cases before. In McCreary County v. ACLU, the Court ruled against a 10 Commandments display in a Kentucky courtroom, finding the display’s purpose was to advance religion. In a dissenting opinion Scalia blasted the ruling, saying the majority had missed the point of the Establishment Clause:

The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers—are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable…from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.

He also raised these views in Lee v. Weisman, a case involving prayer at high school graduation ceremonies. Also dissenting in this case, Scalia panned the majority’s reasoning that school officials coerced students into praying as “incoherent,” and not true to an original understanding of the Establishment Clause.


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For Scalia and others like him, the government can — and should — be doing more to advance religion in the public square. 

The outspoken Supreme Court justice has ruffled his share of feathers in his nearly 30 years on the Court, criticizing the Court’s embrace of “the homosexual agenda” in Lawrence v. Texas, dismissing his opponents’ reasoning as “pure applesauce” in King v. Burwelland most recently raising the question of whether black students should attend a “less-advanced school … where they do well” (Fisher v. University of Texas).

Scalia’s comments on church-state relations this weekend may have raised some eyebrows, but they are in line with his established accommodationist views. And compared to some of his other controversial statements, they are almost innocuous.

Daniel Bennett (@bennettdaniel) researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.

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  • John McGrath

    In that same address Scalia boasted that he has never read the US Constitution. What a fraud.

  • Stuart Mitchell

    Justice Scalia points in the wrong direction of the zeitgeist of society. He is a man firmly rooted in the 18th century. In the cobweb filled recesses of his strange world; slavery is good, women should not vote, and only white men should own land. Gay people, women, and the poor are just collateral damage in the quest for religious and constitutional “freedom”.These are the tenements he must inhabit to hold such views. Modernity and a more peaceful, less religious society will be his view from the grave.

  • G Key

    Re “In a dissenting opinion Scalia blasted the ruling, saying the majority had missed the point of the Establishment Clause….
    ‘Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.’ “:

    Funny how Justice Scalia dissents from the majority for not deferring to the majority.

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  • Larry

    “Scalia’s comments on church-state relations this weekend may have raised some eyebrows, but they are in line with his established accommodationist views”

    It is clear “Accomodationist” is a byword for supporting sectarian discrimination. Scalia’s views may not be unusual, they are not an honest representation of the Constitution either.

    By your own description (author Daniel Bennett) “Accomodationists” seek to undermine secular government at its core. By doing so they also seek to undermine free exercise of religion as well. Although they won’t admit that is the logical outcome of their efforts. By making religious practice protected for only the majority will, it is no longer free for all. The Establishment Clause in its most honest reading seeks to protect the freedom for all beliefs by keeping religion and government separated.

    Scalia’s views may be innocuous to you, Mr. Bennet. But to those concerned for civil liberties, they are an abomination.

  • Jack

    Don’t you just love posts like Stuart Mitchell’s, ones that tell you more about Stuart Mitchell than the one or ones he’s criticizing?

    Yet another wonderful legacy of the poison-pen radical left, which replaces reasoned debate with shrill, Alinsky-like rhetoric.

    Well…..of course, these lovely people have been getting a taste of their own medicine, because two can play the same game. Of course, when they get such a taste, they don their fascist hat and try silencing their opposition.

  • Stuart Mitchell

    WTF?

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