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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