Justice Antonin Scalia on Why We Don’t Need Church/State Separation

Hamodia, the “Daily Newspaper of Torah Jewry” recently published an interview with Supreme Court Justice Antonin Scalia.

As you might expect, he had a lot of ridiculous things to say about church/state separation:

I have been here for a long time now — 23 years. In that time, I think the Court has become more receptive to the needs of religious practice. We have allowed government practices that favor religion, practices to which, in the 60s and 70s, we were quite hostile. Earlier we weren’t hostile. When I was in elementary school in Queens you were able to get out early on Wednesdays for religious instruction. In the early 1950s the ACLU challenged this as violating the Establishment Clause but William O. Douglas wrote an opinion that said, “We are a religious people whose institutions presuppose a Supreme Being… When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.”

A decade later the Court changed its mind and adopted the so-called principle of neutrality — which states that the government cannot favor religion over non-religion. This is not an accurate representation of what Americans believe. The Court itself has contradicted that principle a number of times — including the case approving tax exemptions for houses of worship (Walz v. Tax Commission) and cases approving paid chaplains in state and federal legislatures. More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.

… Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

One major problem with all this, though, is that the founders of our country were not Christian in the way politicians are today. Many of them believed in a “god” only in a broad sense. No god answered their prayers or spoke directly to them.

I have a hard time believing the founders would want Ten Commandments monuments placed in public squares or churches getting tax exemptions.

Those of you who are better versed in the law can probably add a lot more to this discussion. Feel free to throw in your thoughts.

(Thanks to Christina for the link!)

  • Daniel H.

    I have a hard time believing the founders would want Ten Commandments monuments placed in public squares or churches getting tax exemptions.

    I think the founders would want all conceivable tax exemptions, for everything and everyone possible beyond a bare minimum.

  • http://logofveritas.blogspot.com Veritas

    Scalia’s an idiot. His job isn’t to represent what the people of the United States believe. His job is to represent what the law of the United States is.

  • An is on

    I don’t see what’s difficult to understand about “Congress shall make no law respecting an establishment of religion”.

    Very kind of the good sir to point out inconsistencies in this Amendment’s applications in the form of tax exemptions, chaplains and the Ten Commandments. Is he perhaps secretly a poe?

  • TXatheist

    Yeah, because the TX Attorney General Greg Abbott said the 10 C monument has a secular purpose and the right wing court down here agreed it does. It’s complete favoritism for xianity but that’s Texas looking out for the good ol boy system.

  • Reginald Selkirk

    To see Scalia at his very worst, read his dissent in the case of Edwards v. Aguillard, the “Creation Science” case. It is ever so obvious that he starts with his conclusion, and then searches for arguments to support it.

  • http://cycleninja.blogspot.com Paul Lundgren

    Scalia is a neocon thug. He once said there’s no reason not to carry out a court-ordered execution, even if later evidence exonerates the victim. He should be disbarred.

  • Reginald Selkirk

    Problems of inconsistency result when you start with your conclusions. For example, in this interview, he comments favorably on “originalism”: “When I first joined the Court, I needed to spend a lot of time researching what the original understanding was, since the lawyers would just quote the last Supreme Court case. There are now two for sure, thoroughgoing originalists on the Court, Clarence Thomas and myself. And I think the Court as a whole has become more receptive to originalism. I think – or perhaps I just hope – that American jurisprudence is moving away from an evolving Constitution to an enduring Constitution.

    In the very next paragraph he quotes, with apparent approval, this opinion from William O. Douglas: “We are a religious people whose institutions presuppose a Supreme Being…” Yeah? Show me that in the constitution, you self-contradicting moron.

    “I hope my religious views do not affect my opinions at all.”

    Sure. That’s why he has voted so often in favour of displaying the Koran on government property. Clueless git.

    It is a fact that for several hundred years nobody thought that the Constitution forbade restrictions on the termination of fetal life. It is a question of following the Constitution, not my religious predilections.” Once again, compare this with his praise of originalism. It doesn’t care what some people may have presumed for a couple centuries, if it’s not actually in the text of the constitution. Or did you change your mind from a few paragraphs earlier?

  • Valdyr

    Does anyone else find it breathtakingly presumptuous for Scalia to use the term “my court” (in reference to the Supreme Court)? Or is this just slang that all the justices use?

    More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving away from what the American Constitution provided.

    Fixed that for you, Tony.

  • Dave

    Veritas Says:

    Scalia’s an idiot. His job isn’t to represent what the people of the United States believe. His job is to represent what the law of the United States is.

    This is all I came to say.

    Scalia dropped by my law school while I was still a student. Up to that point, I didn’t have an opinion on him. Now, I think he and Thomas are the worst justices on the court. Damn, the man can write, though.

  • http://writingwithbrad.com Brad

    And people wonder why I encourage liberals to buy guns…

  • http://gretachristina.typepad.com/ Greta Christina

    This is not an accurate representation of what Americans believe.

    And

    That is not the American tradition.

    Who freaking cares?

    It’s not your job to interpret the American tradition or what Americans believe. It’s your job to interpret the United States Constitution. Which is pretty damn clear on the subject. “Congress shall make no law respecting an establishment of religion.” What part of that don’t you understand?

    Jackass.

  • Delphine

    Scalia made the unpopular call a few months ago that “the Constitution doesn’t guarantee an innocent man won’t be executed if he were to be found guilty after a fair trial.”

    I agree with that statement. I think it’s wrong, but unfortunately, justice is blind, so the Constitution can’t make such a guarantee. If an innocent man was found guilty after a fair trial, he alone will know he’s innocent. Even if we were to execute him, which would be completely wrong in a moral sense, it wouldn’t be violating his “rights” under the constitution.

    I thought Scalia was a strict constitutionalists when he made that call. It appears he is just a very conservative judge who supports the conservative view no matter what.

    “Separation of church and state” is what protects America from turning into Afghanistan, Indonesia, Iran, and other theocratic states that rule with religious laws. Without that churches could demand adulterers to be stoned to death in accordance with the Bible.

  • http://miketheinfidel.blogspot.com/ MikeTheInfidel

    As an expert on various and sundry matters who is keenly familiar with the clever intricacies of the law, it is my esteemed opinion that Scalia is a dick.

  • http://chaoskeptic.blogspot.com Iason Ouabache

    It is ever so obvious that he starts with his conclusion, and then searches for arguments to support it.

    A right-wing activist judge?!?!?! But that’s impossible!!!

  • mikespeir

    Scalia is himself why we need Church-State separation.

  • http://www.BlueNine.info Blue Nine

    Can someone really be a Catholic originalist? Or is Scalia just really really stupid?

  • Epistaxis

    This is not an accurate representation of what Americans believe.

    A majority of Americans would probably support repealing the Bill of Rights. But fortunately that’s the role of Congress, not the Supreme Court, so it will never get done.

  • http://primesequence.blogspot.com/ PrimeNumbers

    You jut have to look around the world to see where the worst places are to live – they are, for the most part, those that have strong fundamentalist religion mixed in with government at all levels. Those are the places we stay away from. Those are the places we wish not to become.

  • http://notapottedplant.blogspot.com/ Transplanted Lawyer

    To suggest that the First Amendment does not contain the concept of separation of church and state because it does not use those precise words is the same thing as suggesting that the Tenth Amendment does not contain the concept of federalism because it does not use that word.

    Scalia is an originalist, which means that when he is principled in his decision-making, he focuses his jurisprudence on trying to discern the philosophical and practical intentions of the authors of the Constitution. This is not necessarily an invalid approach, although I personally think it is not what the Framers would have preferred. They did not think themselves so very wise as to have had all of the answers for all of the problems that would be faced by future generations.

    Nor should we be critical of Scalia because every once in a while he deviates from a principled way of approaching the law and adopts a more results-based approach. All of us do this from time to time, and if he were to say, “You know, an originalist approach would lead me to conclusion X but frankly, I find that result too immoral to write into the law, so I think this case should be an exception and the result here should be Y,” that would be only natural. But what we (that is, I) can criticize him for is the fluidity with which he does it, particularly concerning matters of 1) governmental advancement of religion and 2) enhancing the power of the Executive branch of government at the expense of Congress and particularly the judiciary.

    Oh, and 3) the fact that after deviating from his normally-principled approach, he refuses to acknowledge that he has carved out an exception to his general rule and instead insists that HE is the principled one and his Brethren are the ones imposing their policy preferences on the country willy-nilly. And 4) the fact that he makes reference to majoritarian-based arguments for political support; the Court is supposed to be above political pressures.

  • http://3harpiesltd.org/ocb Judith Bandsma

    No Delphine, what he said after your quote is the crux of that matter…that actual innocence, PROVEN innocence, would be no reason to halt an execution.

    “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

    Anyone who could condone the execution of someone who was proven to be innocent? Makes me want to puke.

  • Reginald Selkirk

    Transplanted Lawyer: “To suggest that the First Amendment does not contain the concept of separation of church and state because it does not use those precise words…”

    I like to point out that the Bible does not contain the word “trinity.”

  • gribblethemunchkin

    Scalia is as many have pointed out, a dick.

    Best thing that could happen in the US of A is if Thomas and Scalia both passed away quietly in their sleep and Obama put in some decent judges.

    Preferably before the supreme court rules on the current “Corporations are people too, lets scrap campaign finance laws for them” case.

  • JJR

    I for one am bothered there are now 6 Roman Catholics sitting on the Supreme Court. Even a liberal Catholic like Sotomayor could rule unexpectedly in the event of another challenge to Roe v. Wade; No one religious group should have a majority in such an important body as the Supreme Court, though I recognize that for most of its history it had a WASP majority. I fear for the future of state-church separation with 6 RC justices sitting on the court for the foreseeable future.

  • Woody Tanaka

    “Preferably before the supreme court rules on the current ‘Corporations are people too, lets scrap campaign finance laws for them’ case.”

    Yeah, and even though the “original understanding” of corporations were that they were NOT persons legally, but creations of the state, don’t expect “thoroughgoing originalists” Scalia and Thomas to be bothered by that…

  • Woody Tanaka

    Delphine wrote:

    Scalia made the unpopular call a few months ago that “the Constitution doesn’t guarantee an innocent man won’t be executed if he were to be found guilty after a fair trial.”

    I agree with that statement.

    Oh, I don’t. I think that if substantive due process means ANYTHING, it means that there will be procedures in place to prevent the imposition of the death penalty as a criminal punishment, when actual innocence can be established.

  • http://notapottedplant.blogspot.com/ Transplanted Lawyer

    Woody Tanaka wrote:

    I think that if substantive due process means ANYTHING, it means that there will be procedures in place to prevent the imposition of the death penalty as a criminal punishment, when actual innocence can be established.

    While I don’t disagree with that statement as an assessment of current U.S. Constitutional law, bear in mind that Scalia does not believe that there is such a thing as substantive due process at all. As he sees it, the Due Process Clause was intended to, and therefore does, only provide guarantees about the fairness of the procedures used in criminal proceedings. FWIW, Scalia actually has a point here. “Process” not mean “substance.” Process refers to the way laws are administered, while substance refers to what the laws regulate. I say this without agreeing with the result of his reasoning.

    The problem arises from the Court’s unwillingness to revisit the Slaughter-House Cases, which essentially interpreted the Privileges and Immunities Clause out of the Constitution altogether. Had the Court been willing — or were the Court to become willing — to read real meaning about individual liberties into that clause, we wouldn’t need to pretend that “due process” protects things like the right to engage in gay sex. We could instead say that citizens are immune from prosecution for certain things (like gay sex) in the first place.

    Again, if Scalia were willing to be consistent — to apply a meaningful interpretation of what the privileges and immunities of a citizen of the United States really are rather than relying on a century-old piece of judicial activism — then he would have room to restrict the due process clause to the interpretation of it which he favors.

  • http://students.washington.edu/secular Walker
  • http://blog.cordialdeconstruction.com Karl Withakay

    Many of the founding fathers, such as Jefferson. Franklin, etc were basically Deists, not Christians.

  • http://drunkenachura.wordpress.com/ Rooker

    It is infuriating and offensive to see a Justice of the Supreme Court blatantly dismiss as irrelevant the text of the constitution as well as the intentions of the founders in favor of “American tradition.” There are a lot of things that were “American traditions” in the past that we don’t do any more, things which shame most present-day Americans and anyone with any sense of morality.

  • http://free-from-religion.blogspot.com/ LyokoFreaks

    This is what pisses me off: he’s on the Supreme Court and he’s supposed to uphold the Constitution, yet he doesn’t think church/state separation is necessary? News flash for this guy, but it’s clearly stated in the wording of the First Amendment that the government cannot make a law with respect to religion. This means AT ALL. I don’t care what the “common people” of America want; the First Amendment was written to protect the people who AREN’T the common people FROM the common people. This guy just makes me sick. My blog is hyperlinked in my name up there, my first post is about the true nature of the First Amendment.

  • muggle

    That’s some religious freedom. As long as you pick some delusion. Any one will do.

  • SalV

    Unfortunately, though this may be want you want to be true in the scope of the history of the founding fathers, it is not. The man who is first quoted with the term “separation of church and state” and a supporter of the thing, President Jefferson, also appropraited federal funds to the preaching of the Gospel of Jesus Christ to Indians. He also authored, himself, “The Life and Morals of Jesus of Nazareth.” So, while he agreed that there should be a separation in regards to the chance of a state enforced code of religious principles, he obviously did not intend for atmosphere so hostile or afraid of God. In truth every man has a religion, even if that is not have a religion. That is to say that we all represent what we believe in. There is no separation between church and state. We all carry with us exactly what we believe in and there is no separation of that. An attempt at that is vanity.


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