The Devil’s in the details: Justice Scalia and what the Constitution actually says about favoring religion over nonreligion

The Devil’s in the details: Justice Scalia and what the Constitution actually says about favoring religion over nonreligion October 7, 2014

1andrewscalia

The Supreme Court, or at least the five all-Catholic, all-male conservative majority on our Supreme Court, elevated religious belief above the law in the Hobby Lobby decision earlier this year. Last week, Justice Antonin Scalia, a member of that male Catholic majority, spoke at Colorado Christian University and stated what could only be inferred in the Hobby Lobby decision: that religious people are special and deserve special treatment. Among other things, Scalia said

  • “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,”
  • “… to say that’s what the Constitution requires is utterly absurd.”
  • “Our [the court’s] latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and nonreligion. That’s just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution.”

Fortunately, the Hobby Lobby decision was interpreting a federal statute, the Religious Freedom Restoration Act (which everyone should ask their senators and representative to repeal), not the Constitution. But Scalia’s recent comments are about the Constitution. His views are both terrifying and flawed.

The Supreme Court has explicitly rejected the idea that the Establishment Clause only prohibits sectarian preference: “this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.” Abington School District v. Schempp, 374 U.S. 203, 216 (1963). The best expression of this came nearly 30 years ago. In 1985, the court wrote: “At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.” Wallace v. Jaffree, 472 U.S. 38, 52 (1985) (note omitted). This is the erroneous view Scalia clings to and which the court repudiates:

But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects—or even intolerance among ‘religions’—to encompass intolerance of the disbeliever and the uncertain.” Wallace, 472 U.S. at 52-54 (emphasis added and notes omitted).

The high court refuted Scalia in the first real Establishment Clause case 67 years ago. The First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers.” Everson v. Board of Educ., 330 U.S. 1, 18 (1947).

In Texas Monthly, Inc. v. Bullock, the court overturned a sales tax exemption for religious and only religious literature. Justices Blackmun and O’Connor explicitly stated that the “government may not favor religious belief over disbelief.” 489 U.S. 1, 27-28 (1997) (separate opinion concurring in judgment). They were refuting Justice Scalia.

In Schempp, the wonderful victory that friend-of-FFRF Ellery Schempp achieved 51 years ago, Justice Goldberg wrote: “[t]he fullest realization of true religious liberty requires that government … effect no favoritism among sects or between religion and nonreligion.” 374 U.S. at 305 (1963)(Goldberg, J., concurring).

The court put it bluntly 55 years ago, “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally … pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

Not only do Scalia’s views contradict virtually every major Establishment Clause case, they also fail to account for the Equal Protection Clause of the Fourteenth Amendment. It declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In other words, our government and our laws must treat all people equally regardless of their belief.

Justice Scalia often tries, as he did here, to claim that his view is that of the framers—the original view. But again, he’s wrong. The framers agreed on Article 6 ,Section 3 of the Constitution, which prohibits any religious test for public office. During the North Carolina ratification debate, future Supreme Court Justice James Iredell, said: “(I)t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?” Jonathan Elliott (Ed.), Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 4 194 (1836).

Iredell’s point, and the point made by his black-robed successors, is that genuine freedom of religion requires the right to dissent, the right to be free from religion. And if the government can favor religious belief over a lack thereof, the people are not truly free because they are not truly equal.

Scalia is breathtakingly wrong. But what else can you expect from a man who believes, literally, in the Devil: “I even believe in the Devil… he’s a real person”? 

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