Scalia Is Off the Rails

Where were you the day Antonin Scalia went crazy?

This past Wednesday, Supreme Court justice Antonin Scalia delivered a speech in Colorado declaring his true beliefs regarding the separation of church and state concept found in the First Amendment of the Constitution. His statements were not very pleasant to hear.

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion…to say that’s what the Constitution requires is utterly absurd.”

Not up to date but still appropriate

Not up to date but still appropriate

The Establishment Clause of the First Amendment to the Constitution, which states that “Congress shall make no law respecting an establishment of religion,…”, is often overshadowed by the following clause, which states that there is a freedom to practice any religion one chooses. Regardless, the Constitution still pretty clearly states that religion is not to be a wing of the government and that policies that Congress produces shall not favor religion. Seems simple enough.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” – 1st Amendment, U.S. Constitution

The Establishment Clause has had its fair share of challenges over the history of the country but it has usually been (accurately) interpreted to mean that the government cannot pass policies that favor a religion and/or establish religion as a foundation or motivation for governance.

Consider the following court cases:

Everson v. Board of Education – 1947 – A New Jersey law allowed the state to fund bussing to private religious schools. A man sued, declaring his tax dollars were paying for religious education. The Court found in a close 5-4 decision that the law was constitutional because its provisions were separate from the aim of promoting religion. This reaffirmed the idea of a “wall” between religious purposes in law and secular purposes. In the same way the government can/should provide police and fire services to schools, it can also provide bussing because that does not promote the education of religious principles.

Epperson v. Arkansas – 1968 – the State of Arkansas passed a state law forbidding teachers in public schools from teaching evolutionary principles. After a teacher sued, the Court ruled, in a 9-0 decision, in favor of the teacher. Seven justices believed the Arkansas law violated the Establishment Clause of the constitution. The two concurrent decisions were based on the Due Process clause of the 14th Amendment (because the statute was vague and thus unconstitutional) or the Free Speech clause of the 1st Amendment. This set a precedent for a plethora of similar cases in the future, an incomplete list can be found here. Scalia was involved in one of these cases. He dissented, along with Chief Justice Rehnquist, in the 1987 case Edwards v. Aguillard, which was about a Louisiana law, the Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, that required equal teaching of one theory (evolution or creationism) if the other was taught. His decision originated from his support of the bill’s stated purpose of “academic freedom.” Scalia interpreted “academic freedom” to mean students’ “academic freedom” from being taught one principle (albeit very likely correct, as amicus briefs in support of evolutionary science were filed by 72 Nobel-winning scientists, 17 state academies of science, and seven other scientific organizations).

Lemon v. Kurtzman – 1972 – In this case, the Court found, in a 5-4 decision, that it was constitutional for a state to provide secular educational resources to a private religious school because the aim of the law is not to promote religion. The important part of this case is that it set up the Lemon test. This is a standard by which the Supreme Court decides if a law violates the Establishment clause of the Constitution. The following is a portion of the opinion in Lemon v. Kurtzman that describes the Lemon test:

Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.

Elk Grove Unified School District v. Newdow – 2004 – In this case about the phrase “one nation under God” in the Pledge of Allegiance, Scalia recused himself from judging after he made a speech in contempt of a lower court’s decision in this case. In his speech, he declared that lower courts misunderstand the Establishment Clause to mean that religion in the public sphere is not allowed. No one really disagrees with you, Scalia. But that isn’t what this case was about.

McCreary County v. American Civil Liberties Union – 2005 – The Court ruled in a 5-4 decision that religious displays in public schools and courtrooms, in this case two displays of the Ten Commandments in two courtrooms, were unconstitutional because the purpose of the displays was to advance religion. Of course, Scalia dissented. His argument was the public acknowledgement of Allah or God was not unconstitutional. Again, Scalia, you are correct that acknowledgement is not unconstitutional, but displays of religious law over a secular body of law are hardly “acknowledgment,” but rather an endorsement. Note about this commentary: I am not going to bring up the case Van Orden v. Perry, an almost identical case that happened at the same time with a different decision. I have a problem with Breyer’s decision but that does not implicate Scalia in any way.

Recently, in Town of Greece v. Galloway, a case with which I take issue, the Court decided in a 5-4 decision that prayer preceding legislative meetings is constitutional. Scalia, of course, voted with the majority. Scalia’s decision, and this is important, comes down to the idea that there is a longstanding tradition of prayer before public legislative meetings. Scalia joined Justice Alito’s concurring decision which made this argument.

Scalia has made it clear that his view of the Constitution is based on the idea of originalism. That is, the way we should view the Constitution is solely by its original intent. We should find the “messages” of the Constitution as written originally and apply these messages and principles to contemporary issues. This is a perfectly valid view of the Constitution, one with which I disagree yet still respect. The only problem is, Scalia has a long history of using his own personal version of originalism to justify his religious agenda which destroys the purpose of originalism. Scalia criticizes the more liberal judges for being activist judges: interpreting the Constitution as a means to an end to promote a certain belief they hold. However, when Scalia uses his personal version of originalism, he becomes an activist judge but in the other direction than what is typical. What this ultimately means is that Scalia’s decision in Town of Greece v. Galloway is a break from his belief in originalism. His basis was about the tradition, or custom, not a strict interpretation of the original intent. This means that when his personal beliefs and “originalism” come into disagreement, he sides with his personal beliefs, using “tradition” as a justification which is hardly consistent with originalism.

6a00d8341c5f3053ef014e5f42f98a970c-800wiBut back to the original point. Scalia believes the Constitution can be interpreted to mean that religion should be favored over non-religion. This makes absolutely no sense. The Establishment Clause is the primary text for determining the intersection between government policy and governmental religious preference. And unlike so many other declarations in the Constitution, this one is clear and appears first. If anyone can interpret “Congress shall make no law respecting an establishment of religion” to mean Congress can favor religion over non-religion I will give up on my dream to be on the Supreme Court to reverse most if not all of Scalia’s decisions.

And here’s where Scalia is really confused: what is the public square? This is not a super easy term to define but I think most people would define it as public spaces, not necessarily government institutions. That is, a public park, sidewalks, etc. Everyone would agree that people are allowed to give religious speeches on, say, the Diag of the University of Michigan. That is the public square. Government institutions are different. I define these as “civic institutions” and I believe most would agree with this. Think about a spectrum. On one end, you have civic spaces, like a court, a school, a government building. On this end, you also have the Establishment clause. They go well together. On the other end of the spectrum you have private spaces, like your house and your church or mosque or synagogue. You also have the Free Exercise clause. They go well together too. Then, in the middle of the spectrum, you have the ambiguous public sphere, where people are able to gather. This is the intersection of the two clauses. And here, religion can take place where it’s not supported by the government but simply allowed by the government. The first two clauses of the Constitution, like this park, allow any religion to happen but that religion is not supported by the government.

Perhaps this speech was just pandering. Perhaps he was proselytizing to Colorado Christian University to appeal to the religious crowd. I certainly hope this was just rhetoric. I hope Scalia understands what the Constitution says. But I certainly don’t find solace in his judicial record. I believe this is cause enough to have Scalia be recused in every case about the Establishment Clause. But that will never happen.


2 thoughts on “Scalia Is Off the Rails

  1. While I am probably the last Person to argue J. Scalia was right in His comments last week, I do find a few issues with respect to this article. First, links to J. Scalia’s statements would be helpful illustrations.

    Secondly, the Lemon test has weakened over the years I think, in part, due to the vagueness of the phrase “excessive entanglement”.

    Third, in re Town of Greece v. Galloway, You give the impression the notion of legislative prayer being a longstanding tradition which makes it constitution is a new one concocted by J. Scalia; it is not. In Marsh v. Chambers in 1983, then Chief Justice Burger wrote “This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.” This ruling was not challenged by Galloway and the court tends to be in the habit of only deciding cases presented to it.

    Additionally, You describe J. Scalia as thinking “the way we should view the Constitution is solely by its original intent. We should find the ‘messages’ of the Constitution as written originally and apply these messages and principles to contemporary issues.” This statement is inaccurate. J. Scalia is not an advocate of “original intent” but of “original meaning” (cf., Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849.) and has said of “messages”:

    “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” (cf., A. Scalia, “A Theory of Constitution Interpretation”)

    Nor is the decision in Galloway “a break from his belief in originalism.” J. Scalia has been a consistent advocate of stare decisis and has established the following criteria in determining whether to overturn precedents:

    “1) Was the decision willfully wrong?

    2) Has the wrong ruling been generally accepted? (For example, Scalia thinks the incorporation doctrine, which uses the 14th Amendment to apply the Bill of Rights against state governments, is mistaken. That said, it is now so widely accepted that Scalia wouldn’t think about reversing it).

    3) Does the existing precedent put me in the role of a legislator rather than a judge? On the abortion question, for example, Roe v. Wade establishes that laws placing “undue burdens” on women’s reproductive choices are unconstitutional. Scalia has no idea on how a judge can figure out whether something is an “undue burden” or not. Such questions should be left to legislative determination.”

    Source: Justice Antonin Scalia’s visit to Yale Law in 2006

    With the aforementioned 1983 case setting precedent and no challenge to that decision made, He is bound to uphold the ruling, no originalism inconsistency involved.


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