Justice Scalia legacy on religion: A look at the last year of his life

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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/

Written with Daniel Bennett

U.S. Supreme Court Justice Antonin Scalia, who died unexpectedly Saturday (Feb. 14) approached the law with a clear (albeit controversial) jurisprudence on the First Amendment during his tenure on the high court. Scalia consistently argued that government could (and should) support religion. Over the past year, however, he adopted some unusual tactics to advocate for his position.

Last month, 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.

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.

Scalia was the Court’s clearest advocate for 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.”

Scalia and other 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.

Scalia blasted the Court when it did not take this accomodationist view. 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 said the majority had missed the point of the Establishment Clause: Honoring God and the Ten Commandments was not an endorsement of a particular religion.

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.

Scalia wasn’t a passive jurist. Last term, he penned a rare rebuke of the Court after it decided not to take on a case involving a school district renting church facilities for a school’s commencement activities.

Elmbrook Church, Wisconsin’s largest, was the site of multiple Elmbrook School District graduation ceremonies.In 2000, Wisconsin’s Elmbrook School District permitted a school to hold its graduation in a nearby church auditorium, due to poor facilities for such an event in the school. Some students and parents protested the site itself, alleging that the presence of religious symbols and artifacts was troubling and overshadowed what was supposed to be a celebratory occasion. An appeals court ruled that holding the ceremonies there was unconstitutional, as it violated the separation of church and state principle. The Court declined to hear the case, effectively affirming the lower court’s decision.

Scalia said that Elmbrook School District v. Doe had been decided using the “endorsement test” and not the “coersion test” used in the Court’s recent ruling in Town of Greece v. Galloway.

Scalia was characteristically witty or brash (depending on your predilections) in his dissent. Students and families being offended was irrelevant, said Scalia. He said that he is frequently offended by certain types of music:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

But in the Town of Greece decision, said Scalia, the Court ruled that being offended does not mean that one is being coerced. “It is perhaps the job of school officials to prevent hurt dissenting feelings at school events,” Scalia wrote, “But that is decidedly not the job of the Constitution.”

That was the essence of Scalia’s jurisprudence that he advocated throughout his tenure. He had a clear, unwavering view that the words of the Constitution were the end all and be all. And the words of the First Amendment, according to Scalia, meant that government could not establish a national church, but it did not mean that government should be secular.

“God has been very good to us,” Scalia told the high school last month. “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.”

Daniel Bennett (@bennettdaniel) researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University. On Monday, read Dan’s take on Scalia’s top hits (or misses) on religion cases.

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  • David Lloyd-Jones

    What he told those folks in Louisiana was of course totally ahistorical. Um, I guess that’s Creole for “He was lying through his teeth.”

    The documents at the time of America’s founding are perfectly clear: the First Amendment had precious little to do with any religious freedoms. It was put in there to keep the Baptists, Methodists, and other new churches of the time from being stomped by the vicious upperclass Episcopalians, who had somehow crept over from England — along with the tax collectors, no doubt. The First Amendment is a ban on use of the government in inter-communal strife.

    That Scalia, a Roman Catholic, should pretend not to know this is fully in character with the strong sense of play-acting that informed his judgment in putting George Bush in the Presidency, against the electorate’s wishes and legal process.

    Let us give Justice Scalia his due. He was a powerful, energetic, witty, and intelligent reactionary subversive.


  • Jay

    Scalia was not consistent. He sometimes cited “originalist” principles for his decisions, but often simply twisted principle to support his prejudices. He was among the worst justices in the history of the Supreme Court. His decisions, especially his dissents, were often nothing more than political rants. In other words, he was just a right-wing hack.

  • Shawnie5

    True, the 1st Amendment prevents government refereeing between sects, but of course that is not inconsistent with what Scalia said in Louisiana. His views, in fact, about the 1st Amendment prohibiting a “national church” are lifted directly from the records of the debates surrounding the drafting of the Amendment– the comments of James Madison in particular.

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  • samuel johnston

    “Honoring God and the Ten Commandments was not an endorsement of a particular religion.” It certainly IS an endorsement of Christianity over both the competing world religions and the competing secular world views. Indeed, how could anyone get any other impression? Who does not know,that a great many of the leading figures of the Revolution were not “believers”, nor were many at the Constitutional Convention. It would have been easy stroke of the pen for the framers to simply state that no particular Christion sect should be favored or recognised – BUT THEY DID NOT DO SO! They insisted on specifying “no establishment”” and no “religious qualification”.
    Scalia, brilliant though he was, was just another victim of the indoctrination program of the Catholic Church, which, uniquely in Western History, was not represented at our Constitutional Convention. Today we have a majority of Catholic Justices on the Court, which is unprecedented – and dangerous for our tradition of…

  • Shawnie5

    Samuel, regardless of the personal beliefs of the framers, we DO know the gist of the debate surrounding the drafting of the 1st Amendment. We know that there were concerns expressed that it was “liable to a construction different from what had been made by the committee…it might be thought to have a tendency to abolish religion altogether.” Also that “the words might be taken in such latitude as to be extremely hurtful to the cause of religion.” We know that Mr. Madison “believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform,” and “… if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.” But that others at the convention objected to the word “national” because of antifederalist sensitivities of the time.

  • Shawnie5

    In a nutshell, the modern-day popular confusion over this issue stems from two unfortunate realities. One, the generalized ignorance of the founders’s writings and the wealth of historical documentation of these times, and two, the great deal of time that has passed and separated us from the concerns that prompted these amendments to be drafted. We have become so spoiled, so to speak, to religious liberty and take it so for granted that we assume that the founders MUST have intended something more than what the record shows that they intended. But to their generation, fresh from true religious persecution, religious taxes, and the bureaucratic torpor of established religion which continues in Europe to this day, he gift of a country with no national church was certainly no paltry thing.

  • yoh

    The whole notion of “Framer intent” and “Constitutional Originalism” is an exercise of intellectual dishonesty. Rather than consider the effects and getting to a workable interpretation of the text of the constitution, it posits that one engages in phony clairvoyance to pretend the “founders wanted it that way”. As if it is relevant after 200+ years of societal change. We do not need require this game of interpreting quote mining efforts to have a workable Constitutional interpretation.

    What the framers considered at the time is immaterial. The power of the Constitution is that it is a living document. One whose interpretations can adjust to changes in the society. It is not Bible Study. Its written in a legal vernacular.

    Intellectually honest Constitutional interpretation is forward looking when it comes to civil liberties. Expecting changes in society, not pretending they never happened.

  • Ben in oakland

    Simply beyond the pale, but certainly not beyond the breitbart. The only Marxist I can see is Groucho, and he was on a bender.

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  • Ben in Oakland

    Most interesting how you left off the most relevant of Scaley’s religious freedom opinions.

    In all of his anti-gay and anti-gay-rights decisions, Scalia was quite clear: “sincere religious belief” informing anti-gay bigotry was really nothing more than personal religious beliefs and moral opprobrium. As far as he was concerned, these, when combined with baseless prejudice and religious intolerance, were sufficient to legislate against the lives of gay people and cripple their participation in society.

    I wonder how uber reactionary and Catholic Scalia would have felt if the same were applied to Catholics.

    Oh, that’s right. He wasn’t alive in the latter 1800’s. But I’m sure he would have objected.

  • Shawnie5

    Speak of the devil of generalized ignorance and he will surely appear…

    Lare, it is foolishness beyond response-worthiness to argue that it does not matter what those who framed our founding documents, as well as those who voted for and ratified them, intended for them to accomplish. The Constitution is a “living document” indeed in that if we feel certain portions are no longer relevant and are in need of change there is a straightforward process for accomplishing that which has already been employed numerous times. Trying to end-run around this key feature of our social compact is dishonest at best, and treasonous at worst.

    Why do you hate our Constitution so much?

    “One single object… will entitle you to the endless gratitude of the society: that of restraining the judges from usurping legislation.” –Thomas Jefferson, Letter to Edward Livingston, 1825.

  • yoh

    There is a lot of personal attack there but not much else in that response.

    The people who ratified the constitution did not consider women worthy of the vote and black people were chattel property . They also had some rather destructive ideas about state’s rights and the political importance of militias.

    The idea of Constitutional interpretation is not to create some kind of orthodoxy based on 18th Century thinking and political conditions.

    The purpose of the judiciary is to act in a way legislators never conceive of. To fit the laws passed into a workable interpretation to address a specific conflict and issue. Calling judicial review an “end run around the social compact” is rather infantile. The primary role of SCOTUS in this day and age is to enforce and protect civil liberties from the attacks of political majorities. They are the last resort for those whose rights are voted away by the majority.

  • Diogenes

    Though the vitriol expressed here for Scalia is mild in comparison to other sites I have visited today, it is a sad commentary on our present culture that people are so ready to dance on the grave of a philosophical opponent. This is becoming an epidemic. Whatever my private sentiments and public comments are relative to those I disagree with on societal issues, I refuse to rejoice in the death of any fellow being. I’d rather mourn than revile those with whom I disagree who are unable to provide a response.

  • ben in oakland

    The dancing you are seeing exists only in the ballroom or graveyard of your mind.

    I’m not rejoicing in his death. I am rejoicing that he is no longer on the Supreme court.

    Nor was he such a trivial thing as a “philosophical opponent.” This was a man who believed with all his heart that the appropriate place for people like me is prison, if that’s what the state wants to do. Not because of something I’ve done, but because of something the Scaley One disapproves of, or thinks his god does. As he clearly said, without that legal opprobrium, someone might mistake me for a worthy human being.

    Not that he cared personally, of course.

    Of course.

  • Shawnie5

    “The idea of Constitutional interpretation is not to create some kind of orthodoxy based on 18th Century thinking and political conditions.” It isn’t YOUR idea of constitutional interpretation of course, but that is of no importance to anyone but you.

    Of course the framers and ratifiers of the Constitution accepted slavery and denied women the vote — and when later generations repudiated those things they duly passed amendments to that effect. Namely the 13th and the 19th. Perhaps you’ve heard of them?

    “Calling judicial review an “end run around the social compact” is rather infantile.” Judicial legislation is such an end-run, not judicial review. The troubling thing is that the average citizen is now completely clueless about the difference between the two.

  • Shawnie5

    The purpose of the judiciary is to act in a way legislators never conceive of.”

    Um, no, dear, it is not. It is to be “a bulwark of a limited constitution against legislative encroachments” as Alexander Hamilton explained in the Federalist Papers. And “until the people have, by some solemn and authoritative act, annulled or changed the established form [of the constitution], it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution.” –Alexander Hamilton

    THAT is the nature of the social compact the people voted for. Why do you hate it so much?

  • Shawnie5

    “The dancing you are seeing exists only in the ballroom or graveyard of your mind.”

    Oh really? Just for giggles I went to Slate and looked at their first article on Scalia’s death and the very first post I saw on the comment thread was this: “The only thing that keeps me from seeking out his grave and p!ssing on it is the fact that he’s not yet buried.”

    Exhibit A of lefty “class.” Pfft.

  • yoh

    The interpretation and enforcement of the 14th Amendment seems to elude you. Asking the legislature to be the final word on civil liberties is like asking 2 lions and an antelope what’s for dinner. 🙂

    “Judicial legislation” is a phony term and your distinction is meaningless semantic games. Just a pejorative for judicial review. No such distinction exists except in the minds of people who look to ignore or undermine the purpose and power of judicial power. Its all “judicial activism” until the court rules in your favor.

    You want SCOTUS to be bereft of the power they exerted for over 200 years. Typical of people who look to attack civil liberties and moan about things not going their way. Your entire premise is a joke. Calling your remarks ignorance would be untrue. It is just willful misrepresentation.

  • yoh

    Wish he could died have happened sooner. There I said it. I will not apologize for it.

    The whole, “we don’t speak ill of dead public figures” is a load of horse dung. Its done on a regular basis. That sort of behavior knows no ideological boundaries.

    It was not too long ago several famous people who passed away were met with remarks like, “… didn’t know Jesus Christ as their personal savior, so they are in Hell!!!” In fact Christian fundamentalists love speaking ill of the dead whom they find some animosity for. So cut the high and mighty garbage. You will get your chance to gloat when someone else famous dies.

  • Shawnie5

    No, I don’t believe I will. I have had the great good fortune to not have to live among people like the Slate crowd who leave one feeling in need of a shower, and therefore making such statements feels alien to me.

  • Shawnie5

    “The interpretation and enforcement of the 14th Amendment seems to elude you. Asking the legislature to be the final word on civil liberties is like asking 2 lions and an antelope what’s for dinner.” Dear, the 14th Amendment WAS a legislative act. There would have been no racial equality before the law without it because the Constitution in its original form clearly did not intend to grant equality or citizenship to black people. Why else do you think it was necessary? Why didn’t the SCOTUS of the time simply “legislate” racial equality into the Constitution? Good grief!

    “Judicial legislation is a phony term.” Dear, the framers (those who FORMULATED that “purpose and power of judicial power”) of the Constitution all discussed the dangers of judicial legislation at length because there were many concerns about it. Jefferson and Hamilton wrote reams on it. Don’t you possess ANY education at all?

    Why do you hate the Constitution?

  • G Sanner

    Thank you, Shawnie5, for your comment, “Just for giggles I went to Slate and looked at their first article on Scalia’s death and the very first post I saw on the comment thread was this: ‘The only thing that keeps me from seeking out his grave and p!ssing on it is the fact that he’s not yet buried.’ Exhibit A of lefty ‘class.’ Pfft.”

    It’s the best piece of pure prejudice that I’ve seen today. You read 1 comment from someone none of us even know, and you generalized it as “Exhibit A of lefty ‘class.’ Pfft.”

    I disagree with yoh’s reply (though I see how your verbal sucker-punch could elicit such a response).

    As much as I oppose Scalia’s disparaging comments, arrogant judgments, and invidious “insights” about strangers, I realize it’s his subjugating mistreatment of others that I detest, not his life.

    And, back to your comment, I invite you to consider whether you share Scalia’s regrettable habit of confusing moral superiority with elitist ignorance.

  • Ben in oakland

    Just for giggles, read the Mark Midas Comment. Then read Diogenes’s comment. That’s what I was responding to.

  • Ben in oakland

    Shawnie? Confusing moral superiority with elitist ignorance?

    Perish the thought!

  • Shawnie5

    If it had been merely a single comment of course it would have been insignificant. However, when guys like Ben airily inform us that liberal hatred and vitriol is all in our own minds, and then a comment like that literally leaps off the page at you the very instant that you enter a forum where libs go to let their hair down among their own — well, that’s something else. Particularly when it is NOT isolated but is in fact the prevailing sentiment on the entire board. You may not personally agree with Larry’s sentiments but, having talked a good deal with the Slate crowd back when many of them used to be on HuffPo, I know he is far from atypical.

    Actually I don’t see why my “verbal sucker punch” “elicited” any response at all from Larry. It was Ben’s “high and mighty” pronouncement that he in fact contradicted, while he assented whole-heartedly to mine.

  • Shawnie5

    BTW, I freely admit, as I have before, to struggling with a tendency toward elitism — which, as I suspect was the case with Scalia, is far from the result of ignorance but rather the product of a prodigious education and familiarity with the trends and the lessons of history as well as nearly half a century of observing people and their attitudes and how life tends to pan out for various kinds. But I realize of course that this doesn’t excuse out-of-hand dismissal of perspectives merely because they come from a dubious quarter. The Scriptures tell us that God often uses the unlikeliest tools–the disciples themselves being a prime example.

  • Yoh

    A rather uncivil response dripping with arrogance. Trying to divert the discussion rather than address issues posited. Feel free to keep pretending the judiciary does not provide a check to legislative power and that civil liberties exist only by majority fiat. It’s telling that your argument is chiefly employed to try to justify attacks on civil liberties, not expand them.

    Your position is a go nowhere argument. It doesn’t change what is plainly obvious and unlikely to change after 200 years of Court actions. It’s simply whining about how you want things to be by pretending what is already there doesn’t exist.

  • Shawnie5

    The issue originally posited, please remember, was what the framers of the 1st Amendment meant by religious establishment. Scalia’s position on that question was, whether anyone likes it or not, perfectly consistent with everything recorded about the debate surrounding its drafting, as well as all the other writings of the founders upon the subject.

    “keep pretending the judiciary doesn’t provide a check on legislative power” They do, but they can not usurp it. As per Hamilton: “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [expressed in the constitution] is superior to both.”

    Wrt “unlikely to change,” all sorts of changes have waxed and waned with the times. It is because of Scalia that the scotus has regained a good deal of their deference for framers’ intent that was lost during the Warren era.

    And wrt “uncivil” and “arrogant” … ROFL!

  • Yoh

    You kinda left that topic a while ago. What the founders ultimately intended is immaterial. What they left was a document and system which exceeded their ideas and the society they lived in. Scalia’s fiction (and yours) of pretending to know their minds as an alleged monolithic group was laughably dishonest.

    Scalia stood for Christian domination of government at the expense of the free exercise of other faiths. If you claim that is what the founders intended than it is one of many things they were wrong about and we’ve moved on from. But I have yet to see honest support for such claims. A lot of quote mining but little else. Also such readings are not in the constitution’s text, nor in any good faith reading of text from inception.

    As for judicial review, it exists, it is exactly the sort of thing you complain about and is going nowhere anytime soon. Feel free to continue your whining.

    Scalia is gone a liberal judge will take his seat. Life continues on.

  • Shawnie5

    “You kinda left that topic a while ago.” No, dear, you did because you wanted, as always, to argue without any tools.

    “What the founders ultimately intended is imnaterial.” To you, but again, that is why you are an insignificant internet mouth and not a justice. Framers’ intent is an essential principle of constitutional interpretation which EVERY scotus employs many times every year.

    “Also such readings are not in the constitution’s text, nor in any good faith reading of text from inception.” LOL! Neither is “separation of church and state.” You make it too easy. ?

    “Scalia stood for Christian domination of government at the expense of the free exercise of other faiths.” Strawman. Try reading some actual material instead of propaganda from your clueless peers.

    “…than it is one of many things they were wrong about and we’ve moved on from.” We “move on” by amending the social compact, not by 5 oligarchs claimng it means what the people never agreed…

  • shawnie5

    BTW, I freely admit, as I have before, to having a problem with elitism — although it’s intellectual and academic in nature, not moral.

  • G Sanner

    My invitation stands, Shawnie5.

    I suggest protesting others’ offensive statements about you (or Mr. Scalia), which are easy to prove and explain, rather than weakening your credibility by presumptuously prejudging their character — i.e., so-and-so-stranger(s) said such-and-such, so all lefties are contemptibly contemptuous à la “Exhibit A of lefty ‘class.’ Pfft.” — which insults a whole “class” of your equals.

    And, yes, I stand by my calling that uncalled-for insult a “verbal sucker-punch” that exemplifies the term “fightin’ words”.

    But, for the record, I should have said “subordinating” (or “dehumanizing”) instead of “subjugating” when I spoke of Scalia’s “mistreatment of others”. My bad.

  • G Sanner

    Looks like we just crossed posting paths, Shawnie5.

    But it also looks like we’re on the same page. 88-)>>>

  • G Sanner

    BTW, when I think of Scalia’s death, I think of the grief his family and friends (such as fellow Justices Ginsburg and Kagan) are experiencing, like the pain that still overwhelms me when I think of my parents, who died 4 years ago.

  • Ben in oakland

    I certainly didn’t inform you of that. Airily or not.

    But sure. Blame it on me.

    But if you really want to talk about right wing vitriol, breitbart, WND, Tony Perkins, doc Anthony, Greg, be brave, Bryan fisher, Rubio, Ted Cruz, papa Cruz, and on and on.

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