Scalia, Church/State and the Hypocrisy of Recusal Demands

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.

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  • D. C. Sessions

    And I’m quite sure that he’s consulted the spirits of the Founders to get their Original Intentions on the Establishment Clause. So there’s no point in arguing the matter, because he has the Revealed Truth and it can’t be shaken by any silly arguments in court.

  • abb3w

    He’s also reported to have compared himself to Frodo Baggins in this quest. It leaves me wondering if he can tell the difference between Hobbits and Ringwraiths.

  • Reginald Selkirk

    God must be driven out of the public forum

    He must be, along with Bigfoot and invisible pink uniforms. If God were showing up at public forums, the atheist position would have folded by now, and all those silly questions about which religion was correct could be answered by direct questioning of God himself.

  • themadtapper

    Standard conservative projection. His ilk want to push secularism and godlessness out of the public square, so they assume that the other side must want to do the same to them. You see it with just about any kind of privileged majority group. They have an advantage, and they assume that their opponents want to usurp that advantage. That women don’t want equality, they want preferential treatment. That blacks don’t want equal opportunity, they want hand-outs. That gays don’t want marriage rights, they want… you know, I still don’t even know what special advantage these guys think gays will get from getting married. Regardless, that their opponents really and truly just want to be treated as equals seems not to occur to them.

  • Chiroptera

    “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.”

    And this from someone who has read the briefs that were before his court? And had to have studied the cases during his time as a law student? If this isn’t deliberate dishonesty, then there is something going wrong with his intellectual capabilities.

    As far as the “recusal” issue: sure, judges should recuse themselves when there is a confict of interest, meaning that there would be a definite material benefit if the case is decided in a certain way. But I wouldn’t consider simply having an opinion to be a conflict of interest. I would expect that someone who is qualified to be a judge should be able to consider the evidence and arguments and be able to change their opinion if warranted.

  • D. C. Sessions

    Chiroptera, I’m sure that Scalia would indeed change his opinion regarding the Establishment Clause if someone presented him with evidence and arguments that warranted such a change. However, since no such evidence can possibly exist and there are no such arguments, he doesn’t have to worry about that.

  • Chiroptera

    D. C. Sessions, #6:

    I wouldn’t ask Scalia recuse himself because he has opinions that are too deeply rooted to be swayed by any relevant evidence and arguments.

    I’d demand that he retire because he’s the exact opposite of an “intellectual powerhouse” that some people seem to claim for him. (Was he ever a great legal intellect? Or was that always the myth?)

  • D. C. Sessions

    You’re using the wrong dictionary. An “intellectual powerhouse” is someone who consistently validates my opinions by supporting them with fancy language.

  • vilstef

    For being such a red hot Constitutonal jurist, Scalia seems grossly uninformed of what his job is, and the content of the Consitution. Why doesn’t he retire to drinking beer with fellow dimwit Bill O’Reilley?

  • Sastra

    What we challenge are official government endorsements and favoritism, which is nothing like wanting to wipe religion out of the public square.

    As you say: the legal cases all have to do with government endorsement.

    There is, of course, also a desire to ‘wipe religion out of the public square’ by rationally persuading people over time to abandon bad ideas for better ones — but only religion would resort to law for that one.

  • Scott Hanley

    “That’s a possible way to run a political system. The Europeans run it that way”

    I’m sure Scalia knows perfectly well that his audience will hear that as, “That’s no way to run a political system.”

  • Chiroptera

    “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.

    As a citizen, Scalia is perfectly free to dissuade Americans from anything he wants. But I sure wish that in his official capacity of a Supreme Court justice he’d quit shoe-horning his political beliefs into Constitutional law. (Or if he insists on shoe-horning his beliefs into Constitutional law he’d show more respect for our intelligence and write more cogent opinions.)

  • D. C. Sessions

    I sure wish that in his official capacity of a Supreme Court justice he’d quit shoe-horning his political beliefs into Constitutional law. (Or if he insists on shoe-horning his beliefs into Constitutional law he’d show more respect for our intelligence and write more cogent opinions.)

    Why? It’s not like he has to actually persuade anyone.

  • wscott

    FYI, here’ s a great article from a minister on why church-state separation is a good thing. Nothing terribly new to this crowd, but a great item to send to Christianists who just can’t hear any argument that comes from a non-Christian.

    http://www.al.com/living/index.ssf/2014/09/7_reasons_why_prayer_does_not.html