Supreme Court Justice Antonin Scalia has uttered some odd, if not downright scary, views on any number of topics, including his firm belief in the devil. He claims a commitment to “originalism” in judicial philosophy, which basically means using historical inquiry to discern the original intent of the Constitution’s framers. This once led him to argue that flogging in the 21^st century would be allowable because the framers did not specifically prohibit it.

But these examples aside, it is Scalia’s church-state views that really give one pause. It is here where his originalist prism leads to particularly ominous perceptions. For example, in the Supreme Court’s Greece vs. Galloway decision in 2014 approving of town boards opening meetings with predominantly Christian prayer, he wrote that the Establishment Clause is not violated when nonbelievers experience “subtle pressures” to conform to religious favoritism, because such pressure is not the same as the religious “coercion” the framers were focused on eliminating.

But he didn’t stop there. Saying that the church-state relationship in the 18^th century was “far from settled,” Scalia concurred with Justice Clarence Thomas in Greece that this lack of consensus on church and state when the Bill of Rights was ratified means the First Amendment is “agnostic” on the subject of church establishments by individual states; so states are thus, constitutionally, free to establish religions if they so choose.

And there’s more. In a 2005 decision in McCreary County v. ACLU of Kentucky that banished a Ten Commandments display from the McCreary and Pulaski County courthouses, Scalia argued with a plaintiff by insisting, “What the Commandments stand for is the direction of human affairs by God. And to say that’s the basis of our institutions is entirely realistic.” In a similar Ten Commandments case, he dismissed the idea the Decalogue has only a secular role in the development of law, arguing instead that “I think the message it sends is that law and our institutions come from God.”

He went on to say in his McCreary dissent that the Establishment Clause does not protect religious minorities or nonbelievers from majoritarian sentiment, and it is a “demonstrably false principle that the government cannot favor religion over irreligion.” In addressing the conflict between minority religions or nonbelievers and majority religious belief, Scalia astonishingly claimed, “Our national tradition has resolved that conflict in favor of the majority,” so the Establishment Clause “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

Finally, in a 1992 case, Lee v. Weisman, in which two parents successfully challenged the constitutionality of prayers being said at their daughters’ public school graduations, the Court’s majority viewed that situation as making students face real pressures to join in prayer, so they ruled the prayers ought not be allowed. Scalia in dissent noted that President Bush had asked people attending his inauguration to bow their heads in prayer, and he said these students and their family should be willing to do the same.

All this, from someone sitting on the highest court in the land. The Constitution's main architect, James Madison, once observed that "religion and government will both exist in greater purity the less they are mixed together." How does Scalia miss the "original intent" in that?

By Ken Burrows

Published May 27, 2015 with quotation below:

“Our civil rights have no dependence on our religious opinions.” - - - Thomas Jefferson