Law Prof Hammers Scalia’s Terrible Analogy

Geoffrey Stone is a law professor at the University of Chicago and a highly respected legal scholar. And he found Justice Scalia’s analogy between official government support for religion and hearing rock music in public to be as ridiculous as I did.

What caught my attention about Justice Scalia’s dissenting opinion was not the core of his argument — that the lower court was wrong in its understanding of the Establishment Clause, but the exceedingly odd way in which he framed the issue. At the outset of his opinion, Justice Scalia began by noting that some people, perhaps many, “are offended by public displays of religion.” He then said that he “can understand that attitude” because it parallels his own attitude “toward the playing in public of rock music or Stravinsky.” Moreover, he noted, he is “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, he added, the government cannot constitutionally protect his “aversion” to being exposed to such unpleasantness “because of the First Amendment.” To support this proposition, he cited two Supreme Court decisions that had, indeed, held that the government cannot constitutionally prohibit private speakers from having their say in public merely because their speech offends others.

What makes this discussion odd is that none of this has anything to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech (or, rather, religious activity) by the government itself. It is true, of course, that the government ordinarily cannot suppress speech by individuals because the message conveyed offends others. This is so not only for rock music and Stravinsky, but also for flag burning, a Nazi march, and religious expression. The government cannot constitutionally forbid a speaker from handing out religious leaflets because his message offends others. But that has absolutely nothing to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech by the government itself. The analogy drawn by Scalia is flat out wrong.

Justice Scalia then compounds the problem by observing that some “of this Court’s cases,” decisions of which he clearly disapproves, “have allowed the aversion to religious displays” to lead the Court to hold that the First Amendment sometimes prohibits “religious displays” in “public facilities” and “public ceremonies” – “despite the fact that the First Amendment explicitly favors religion” but is “agnostic” about other types of expression.

To be perfectly candid, this borders on incoherence. What Justice Scalia seems to be saying is that because the First Amendment guarantees “the free exercise of religion,” the government should itself be free to engage in “the free exercise of religion.” This is wrong on multiple counts. First, the Free Exercise Clause guarantees individuals the right to practice their religion. It does not give the government the right to practice its religion — or even to have one. This is elemental.

Second, although the First Amendment “explicitly favors religion” in the sense that it guarantees “the free exercise of religion,” it does not “favor” religion when the speaker is the government. To the contrary, the First Amendment explicitly restricts the government with respect to religion, by providing that government “shall make no law respecting the establishment of religion.” The Constitution gives the government broad power to take positions in all sorts of ways, but the one thing it explicitly forbids the government to do is to take positions on religion that constitute acts “respecting the establishment of religion.” Thus, the First Amendment does not “favor” religious expression by the government, it specifically and unambiguously constrains it.

Third, Justice Scalia suggests that the reason the Court has interpreted the Establishment Clause to limit religious expression by the government is because some people have an “aversion to religious displays,” analogous to his aversion to rock music and Stravinsky. But this completely misunderstands the essence of the Establishment Clause, which is not about protecting people from what they might see as the “unpleasantness” of religious expression, but about keeping the government neutral in the realm of religion, because the Framers understood that non-neutrality by the government would prove divisive and destructive of the very notion of “We the People.” It was for that reason, and not to protect people against the unpleasantness of listening to what they might deem offensive religious expression, that the Framers, in Thomas Jefferson’s words, erected a “wall of separation” between state and church.

This is what Scalia has become in the last decade or so. Where once he was almost universally considered one of the sharpest minds on the court, even by those who disagreed with him on almost everything (me included), he’s now just a cranky old man making terrible arguments that suit his political agenda.

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  • Olav

    Ed:

    Where once he was almost universally considered one of the sharpest minds on the court, even by those who disagreed with him on almost everything (me included), he’s now just a cranky old man making terrible arguments that suit his political agenda.

    Or perhaps he was always this bad, but it took some time for people like you to see it?

    Optimism is often an admirable trait in people. But it leads to rose tinted glasses.

  • D. C. Sessions

    Or perhaps he was always this bad, but it took some time for people like you to see it?

    Or perhaps he was always this bad, and is still sharp, but no longer sees any need to hide his freak flag. After all, why not let it fly? He’s not going to persuade anyone even slightly to his left, and has no need to persuade the other four Justices on Team Republican. He can really put his back into moving the Overton Window.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    He’s still brilliant. Imagine what kind of a mind it takes to make an argument that bad. I mean, it would take most people some thought to come up with that, but he doesn’t even need to think about it!

  • Randomfactor

    decisions of which he clearly disapproves

    Does he think he has a right not to be offended by them?

  • Kat Cassidy

    Maybe it’s just Alzheimer’s.

  • scienceavenger

    At the outset of his opinion, Justice Scalia began by noting that some people, perhaps many, “are offended by public displays of religion.”

    Has anyone making this claim ever actually documented someone on the Left making this argument? I’ve never seen it. It seems to be the Saul Alinsky of First Amendment, something the Right claims the Left does all the time, but which never appears in any actual Left-leaning literature, court cases, or commentary.

    It’s almost as if, knowing they couldn’t combat the arguments we actually make, they made up a silly one that would be easy to attack…nahhhhhh.

  • matty1

    @6 It’s easy, the only reason to complain about something is because you are offended by it, therefore all complaints are evidence of people being offended. The idea someone might care about the principle or have some other reasons for wanting the rules upheld, that’s just silly. Nope it’s all about pearl clutching and “Oh my goodness I’m offended to see that”

  • DaveL

    Nothing Scalia says can surprise me anymore, ever since he famously intimated during Salazar v. Buono that all people of all religious groups mark their graves with latin crosses.

  • Reginald Selkirk

    Where once he was almost universally considered one of the sharpest minds on the court, even by those who disagreed with him on almost everything…

    I cannot agree. Scalia’s dissent from Edwards v. Aguillard was back in 1987, when Scalia had been on the court less than year. And it’s pretty awful.

  • http://polrant@blogspot.com democommie

    Tony Ducks is either a lying, piece-of-shit, KKKristianist fuckbag or a demented piece-of-shit, KKKristianist fuckbag.

    I honestly can’t tell from the stench, which it might be.

  • chilidog99

    When was the last time Scalia rode the bus or sat around the waiting room of a public agency?

  • parasiteboy

    What makes this discussion odd is that none of this has anything to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech (or, rather, religious activity) by the government itself.

    it’s not odd if Scalia believes that governments are people too, my friend.

  • Akira MacKenzie

    Scalia’s belief that complaints about chruch/state intanglements are really just “offense” at open expressions of faith is par for the right-wing course. Whether its matters of religion, race, gender, etc., the traditionalist majority should be free to say and do whatever they please, while the “hypersenstive” and “politically correct” are just trying to shame the people they disagree with by shame. It doesn’t matter if historically aggrevied groups actually have something to be “indignant” about, Real Americans put up AND shut up in the face of advisity and not complain when the white, male, heterosexual, and in Scalia’s case, Christian majority come to scew you over. “You don’t have the right NOT to be offended,” is the common line, and it’s a popular one amoung the general populace.

    Of course, the “offense” or “indignation” is not the reason atheists like me complain about government-endorsed religiousity, the issue is that the state is using religion as a politlcal truncheon amd we and ptjer non-Christians don’t want to get smacked with it. Scalia knows it, but he’s a good Catholic boy and doesn’t care about we hell-bound blashphemers. Therefore, he dismisses our concerns as the bellyaching of a fringe group out to take away “freedom” from the god-fearing majority.

    And it will work everytime.

  • had3

    “An establishment of religion,” not “the establishment of religion.” A minor point, but a law prof criticizing someone on a legal argument and quoting the relevant part, should quote it correctly.

  • Reginald Selkirk