Justice Antonin Scalia gave a talk at Colorado Christian University, during which he said that the First Amendment’s religion clauses do not require that the government refrain from endorsing or favoring religion (meaning, of course, Christianity).
Justice Scalia, part of the court’s conservative wing, was preaching to the choir when he told the audience at Colorado Christian University that a battle is underway over whether to allow religion in public life, from referencing God in the Pledge of Allegiance to holding prayers before city hall meetings.
“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,” Justice Scalia said.
“That’s a possible way to run a political system. The Europeans run it that way,” Justice Scalia said. “And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”
So I’m sure Mat Staver, Roy Moore and all the other wingnuts demanding that Justices Ginsburg and Sotomayor recuse themselves from same-sex marriage cases will be launching petition drives calling for Scalia to recuse himself from all future cases involving the question of government favoring or endorsing religion, right? Right? Yeah, I didn’t think so.But here’s the part I really have a problem with:
“There are those who would have us believe that the separation of church and state must mean that God must be driven out of the public forum,” Scalia said. “That is simply not what our Constitution has ever meant.”
I always hate this language. It’s usually stated as some mythical desire to “eliminate religion from the public square,” but public forum is just as slippery. They never actually define what they mean by that. What they want their constituents to think when they read that is that advocates of church/state separation want to make it so no one can express any religious belief on public property or, for that matter, in public at all. But that is just plain dishonest.
People hold prayer rallies on public property all the time. Religious groups have the same access to public property for their events as non-religious groups, as they should have. What we challenge are official government endorsements and favoritism, which is nothing like wanting to wipe religion out of the public square. Scalia knows this, I’m quite sure. But he’s acting here as a polemicist, not a legal scholar who deserves to be taken seriously.