Patinated Ponies

Scalia, History, and What the Judges had for Breakfast

I’ve been preparing for my exam for Constitutional Law II: Religious Liberty, and I’ve been trying to wrap my head around a dissent by Scalia (for you kids with access to Westlaw, it’s in McCreary County v. ACLU, 545 US 844 (2005)), but also around the whole class and how I now feel about religion in the public sphere, now that I’m much more informed. 

The class was harder to swallow at times than I expected. I’m not a religious person - I don’t believe in God, though at times I’ve wished that I had the strength to. But if I were ever to run for office or try to get appointed as a judge? I’d say I’m Episcopalian, or Presbyterian. It’d be political suicide not to.  

McCreary is a case about a KY courthouse that put up a copy of the 10 Commandments in its halls. The majority (5-4) ruled the placement unconstitutional, in violation of the Establishment Clause, holding that the State government could not use its “speech” in way that so endorsed religion over non-religion (majority opinion by Souter). The majority relied on the requirement that the government remains neutral w/r/t religion. 

For the first time in religion clause history, or at least for the first time in remotely modern history, Scalia openly rejected the neutrality principle. On the basis of history, and the fact that the majority of Americans are monotheists, Scalia so boldly asserted that “It is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

This opinion probably gave me wrinkles; I was scowling so hard while I read it, while we talked about it in class, while I read a law review article about it, and I’m still scowling as I write about it now. 

Scalia, basing his conclusion on history, makes a circle of included religions. Inside the circle, he puts the Big Three - Christians, Jews, and Muslims. Outside the circle, are everyone else - 15% of the population, who either believe in more than one God, a god other than the Biblical god, or no god at all. This line-drawing is at its best arbitrary, and at its worst based on impermissible discrimination. 

Catholics, at the time of the Founding, weren’t in the inner circle. Up until Kennedy was elected, most thought that Catholics, because of their allegiance to the Pope, couldn’t genuinely participate in democracy. But Scalia’s Catholic, and there are lots of them now, so he breaks from his strict originalism to change the lines in the sand. 

We’ve come a long way, haven’t we, baby? 

Scalia, and others on the Court in the context of creche cases (nativity scenes), argue that religion in the public sphere creates incidental harms at most. They argue that religion is a public endeavor - you can’t truly worship alone, and so the majority has a right to worship - to come together in a way that unifies everyone. Most  say that as long as prayers are nonsectarian, they’re fine for the public sphere, refusing to go as far as Scalia. 

And what of the minority who doesn’t want to worship in this way, or doesn’t want to worship at all? 

Do we expect a Jewish president any time soon? Or even some wacky Christian - look at the flack Mormon candidates continue to get. We added the words “under God” to the Pledge of Allegiance in 1954, in an attempt to distance ourselves from irreligious communism, and yet we act as if it’s the only way we’ve ever wanted to show our patriotism. 

I’m not so sure that the harms caused by government endorsement of religion  are as incidental as the majority is inclined to believe. I think, as O’Connor states in a creche case, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders.” This is equally problematic when we endorse monotheism as it is when we endorse Christianity. 

Most Justices will balk at strict separation. But that choice is more a political decision than one based on Constitutional principles. I say go down the slope. Is it really so horrible to take “in God we trust” off our money, when it seems to imply that those who do not trust in God are incapable of civic virtue, of morality?