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.