Antonin Scalia, the Establishment Clause, and majority rule

I was preparing materials this week for a five-week course I’m teaching later in the semester for my university’s continuing education program. The subject is “Church and State in the U.S.,” approached more narrowly as a survey of Supreme Court cases on issues that I anticipate will be of high public interest. We’ll analyze the majority and minority decisions, trace the competing rationales that led different justices to different conclusions.

One of the cases I’m using is McCreary County v. ACLU, a 2005 case involving a Ten Commandments display in the state just south of me. (Howdeedoo, Kentucky.)  McCreary is actually one of two Ten Commandments cases the Court decided on the same day, the other being Van Orden v. Perry, which involved a display in Texas. Do you see a geographic pattern here?

I’ll probably blog about this again as I get closer to leading this discussion for the class and have therefore prepped more and can talk about the details of the cases with more fluency than I’m prepared to do at this moment. These two cases are fascinating and bewildering because, thanks to an idiosyncratic swing vote, opposing viewpoints ended up both enjoying the status of “opinion of the Court.” Not being a lawyer, I don’t what that means, exactly, for the future of jurisprudence on Ten Commandments displays; but to my layperson’s eyes, the situation looks completely f****d up.

But by way of whetting the appetite, here’s a snippet of Justice Scalia’s dissent in McCreary. Scalia’s position–which he argues at great length and care, whatever you may finally think of it–is that government recognition of the Judeo-Christian God (who is also, Scalia says, the God of Islam) does not violate the Framers’ intent for the Establishment Clause. He’s very careful to say that he is not sanctioning a Judeo-Christian establishment; he’s saying, rather, that government acknowledgement of the Judeo-Christian God, as in Ten Commandments displays, does not constitute “establishment of religion” and therefore doesn’t run afoul of the First Amendment. To another justice who charged him with marginalizing religious minorities, this was Scalia’s response. Certainly no one can accuse him of being coy about his commitments and priorities (which is something he charges other justices of in their rulings on touchy church-state issues).

I must respond to Justice Stevens’ assertion that I would “marginaliz[e] the belief systems of more than 7 million Americans” who adhere to religions that are not monotheistic.Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator. Invocation of God despite their beliefs is permitted not because nonmonotheistic religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of God is not an establishment. Justice Stevens fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling “excluded”; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority.

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