September 22, 2009

Antonin Scalia Doesn't Believe In Governmental Neutrality About Religion

That is, Justice Scalia believes the government should promote religion as opposed to non-religion (emphasis added):

It has not been our American constitutional tradition, nor our social and legal tradition, to exclude religion from the public sphere.  Whatever the Establishment Clause means, it certainly does not mean that the 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.

Which is certainly Justice Scalia's opinion, although it lacks the advantage of historical precedent, conformity to the text of the First Amendment, or the logic and intent of its authors.  To be sure, he points to the fact that the First Congress employed a chaplain and had that chaplain deliver prayers and invocations to Congress in its open session.  But I also note that elsewhere in the article he says:
I do not believe in using legislative history in deciding the meaning of statutes.   The statute is what Congress voted on, not what some committee member said he thought it meant.  I don't care what he thought it meant, since the rest of Congress didn't know what he thought it meant when they voted for the law.

So that means that whatever it was that people like James Madison and Elbridge Gerry and Oliver Ellsworth thought they were voting on is irrelevant, because what they actually did vote on is this language:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Which means, according to Scalia's textual-only approach, that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of religion.  Presumably by "no law," that means no law.  We also know that the Framers of the Fourteenth Amendment bound the various states to observe the strictures on government that the Constitution imposes on the Federal government:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Although if you prefer original intent to raw text, take note that John Bingham, the principal author of the Fourteenth Amendment, was an advocate of using it to apply the Federal Constitution, in toto, to the States.  (Don't want to believe me?  Too bad.  See the Congressional Globe, reporting word-for-word on the floor debates of the Congress, beginning at page 2074 of this link.)  So the question is not whether Justice Scalia thinks it is American tradition for the government to promote religion, it is rather a question of whether the government, at any level, has the power to promote a religion.

In order to reach Justice Scalia's conclusion that the government can promote religion, you have to conclude that "promoting" religion is not the same thing as "Establishing" it.  But even looking back in Anglo-American legal history to the first Establishment of a Church, we see that individuals had freedom to not participate in, and indeed to openly disagree with and not support, the teachings of the King's (or Queen's) Established Church, which tolerated those whose religious views differed from that of the monarch. If the Crown of England under the Tudors would not encourage its subjects to worship in a favored fashion, then how much less should the republican government of the United States?

And again, originalists must depart from textualists, because it is clear that original intent was for a very strict separation -- James Madison refused to pay even a three-pence-per-year tax to pay religious teachers from a church of which he was already a member:
Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Nor is our "tradition" particularly important.  There are plenty of venerable traditions in our national history which we have rightly discarded -- traditions of racial segregation, discouraging women from seeking professional careers or advanced education, restricting voting rights to property owners, saying the Pledge of Allegiance with a fully-extended arm pointed towards the flag palms-down (do the gesture and you'll see why we've abandoned this practice), passing out free whiskey at political rallies, and the list goes on and on. Nor does Scalia explain how, if we're supposed to look only at the text of the Constitution and to disregard the original intent of its authors, a "tradition" is even remotely relevant to understanding what the Constitution means. In fact, if we're looking at the text only, traditions are unimportant.

Simply put, Justice Scalia is inconsistent, and in a way that conforms to his own personal preferences rather than to a principled, faithful interpretation of the Constitution.  He thinks religion is good, and non-religion is bad, and that the government should promote the good over the bad.  While his impulse is perhaps understandable, it is also not what is in either the words or the intent of the Constitution.  Perhaps he is as unwilling as anyone else to reach a result in a particular case he finds unpalatable -- I could live easier with it if he would just say so, instead of dressing up his inconsistencies in the ill-fitting mantle of an inconsistent and inconsistently-applied "philosophy."


zzi said...

What's wrong with following in the footsteps of a great American?

"It is impossible to rightly govern the world without God and the Bible"
-Geo Washington

Transplanted Lawyer said...

I'd agree Washington was a fantastic American and rightly is deemed the father of our nation.

But Washington was also a slave owner. No reason to follow in his footsteps there, either - because our Constitution no longer allows it.

zzi said...

But Washington was also a slave owner.

-Transplanted Professor