The Wall Banger

Justice Antonin Scalia Spent 30 Years Assailing The Separation Of Church And State

Supreme Court Associate Justice Antonin G. Scalia left no doubt about where he stood on the constitutional principle of church-state separation.

“To tell you the truth, there is no place for that in our constitutional tradition,” Scalia said a little over one month before he passed away Feb. 13 at the age of 79. “Where did that come from? To be sure, you can’t favor one denomination over another but can’t favor religion over non-religion?”

During that address, which Scalia gave at Archbishop Rummel High School in Metairie, La., he went on to credit God for America’s successes – and opined that the United States received divine favor precisely because it has honored a deity.

“God has been very good to us,” Scalia claimed. “That we won the revolution was extraordinary. The Battle of Midway was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name we do him honor.”

That this powerful jurist, who was well known for his quick wit and scathing opinions, embraced “ceremonial deism” – or the idea that it is acceptable for government entities to make generic endorsements of belief over non-belief – is something of a surprise considering that Scalia claimed to be a constitutional “originalist.”

In his opinions over the years, Scalia, who was appointed to the court in 1986 by President Ronald W. Reagan, seemed to embrace the idea that the Founding Fathers intended the First Amendment only to prevent the federal government from literally establishing an official Church of the United States.

Anything short of that would be perfectly fine as far as he was concerned – including the words “under God” in the Pledge of Allegiance, taxpayer aid to religious entities, official prayer at public school events, the teaching of “creation science” in public schools, official prayers before government meetings and other connections between church and state.

During his three decades on the court, Scalia was on the wrong side of pretty much every church-state case that came before the justices. In the early years of his career, he frequently penned sarcastic dissents. As time went by and the high court became more conservative, Scalia was often in the majority.

Scalia liked to think of himself as an “originalist,” someone who read the Constitution in light of the time it was written. Putting aside the wisdom of such a move – American society has changed dramatically since the late 18th century – there are many who dispute Scalia’s claim to that term. According to critics who followed Scalia’s three decades on the high court, he was no “originalist” – rather, he was a justice who often issued square opinions crammed into a round constitutional hole if doing so was necessary to support his personal worldview. And over the years, that was especially true when it came to cases involving religion.

There is no doubt that Catholicism was a major part of Scalia’s personal life. He attended Jesuit schools during his formative years, including for secondary schooling and then at Georgetown University for his undergraduate studies. In 1992, he told a group of high school students at Georgetown Visitation High School in Washington, D.C., all about his experience with meatless Fridays and Sunday morning fasts before he received Communion.

“When I was the age of you young ladies, the church provided obtrusive reminders that we were different,” he said, adding that these practices “were not just to toughen us up” but to “require us to be out of step” with mainstream society.

Scalia was the father of nine children, one of whom became a Catholic priest. Of his large, apparently unplanned family, Scalia once remarked: “[My wife and I] are just old-fashioned Catholics, playing what used to be known as ‘Vatican Roulette.’”

He expounded upon that in a separate interview: “Being a devout Cath­olic means you have children when God gives them to you,” he told his biographer, Joan Biskupic.

Scalia’s personal religious views might have remained just that – personal – had he not taken pains to interject them into public policy. But it seems that Scalia just couldn’t help himself.

During his time on the high court Scalia was a frequent attendee of the Red Mass, a special church service for members of the legal profession held annually by the Roman Catholic Archdiocese of Washington, D.C. The mass, so named because of the red vestments worn by the officiating clergy, is traditionally held the Sunday before the high court begins its new term, which is the first Monday in October. Church clerics often use the occasion to harangue the justices on issues like abortion, marriage equality and tax aid to religious schools.

Although Scalia bristled at the idea that he was a “Catholic judge,” saying in 2010 that “the only article in faith that plays any part in my judging is the commandment ‘Thou Shalt Not Lie,’” he made no secret of his obvious religious devotion.

“If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world,” he told the Knights of Columbus, a Catholic fraternal order, in 2005.

Despite comments like that, a National Public Radio (NPR) story on Scalia described “the relation between Scalia’s Catholicism and his judicial decision-making” as “complex.”

“I think he thinks that his faith provides him clear answers,” Paul Clement, a former Scalia clerk who would later serve as solicitor general during the administration of President George W. Bush, told NPR before Scalia’s death, “and I think that’s sufficient unto him in most areas.”

Scalia camouflaged his yearn to interject more religion into government by claiming to be standing up for a narrow reading of the Constitution. In his view, some rights might have to be curtailed.

That view was certainly on full display when he discussed Roe v. Wade, the landmark 1973 decision that solidified the right of women to obtain an abortion. Although Scalia was not a member of the high court at that time, he made it no secret that he strongly disagreed with the majority opinion.

“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia told California Lawyer in 2011. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

“If indeed the current society has come to different views, that’s fine,” he added. “You do not need the Constitution to reflect the wishes of the current society. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”

 Such declarations are evidence of what some longtime Scalia critics called his lack of empathy for others, especially people unlike himself. For all his wit and much-discussed brilliance, some observers of the Sup­reme Court said Scalia consistently failed to comprehend how his rulings affected the lives of others, and he failed to see the Constitution as flexible enough to embrace emerging rights – rights no one could have considered in 1791.

That failure to understand what his rulings meant to real people in the real world was on full display in one of his final dissents, a scathing missive issued for Obergefell v. Hodges, which legalized marriage equality in the states in 2015. The anti-gay Scalia railed against the five-justice majority, which had written of the “dignity” that comes with marriage rights.

“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Scalia opined. “And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. But what really astounds is the hubris reflected in today’s judicial Putsch.”

Scalia also ranted that the decision was a “threat to American democracy” because “the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court. Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.”

Although Scalia maintained to the end that he viewed his job as one of interpreting what the Founding Fathers meant when they wrote the Constitution, critics noted that he paradoxically held opinions that the Founding Fathers would have opposed. That was certainly true in Town of Greece v. Galloway, a 2014 case brought by Americans United in which the Supreme Court said town governments are free to open their meetings with sponsored, predominantly Christian, prayers. During oral arguments for that case, Scalia argued vociferously that government had the right to endorse and promote belief in God, a view that Thomas Jefferson and James Madison would likely have disputed.

“They are there as citizens…,” he said of local lawmakers who preside over town meetings. “And these people perhaps invoke the deity at meals. They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?”

Scalia expressed similar sentiment in another Americans United-sponsored case, which the Supreme Court ultimately decided not to take. In 2014, the high court considered Doe v. Elmbrook School District. The district had sought review of a July 2012 decision in which the 7th U.S. Circuit Court of Appeals struck down a Wisconsin school district’s use of an evangelical megachurch to hold commencement ceremonies. Most of the high court had no interest in hearing the case, which meant a victory for AU. But not Scalia and Justice Clar­ence Thomas. They wanted to take the case or order the appeals court to reconsider its decision.

In a seven-page dissent, Scalia asserted that holding a public school graduation in a church festooned with Christian symbols is not equivalent to government endorsement of religion, and he showed total disregard for the fact that some people might be offended by attending an official school event in a house of worship.

Town of Greece made categorically clear that mere ‘[o]ffense . . . does not equate to coercion’ in any manner…,” he said. “It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution.”  

Scalia also focused on “tradition” as a justification for government-sponsored religious activity. In his Elmbrook dissent, he argued that early public schools used church buildings for school functions.

“[P]ublic schools have long held graduations in churches,” Scalia wrote. “This should come as no surprise, given that ‘[e]arly public schools were often held in rented rooms, church halls and basements, or other buildings that re­sembled Protestant churches.’”

In fact, there is no evidence of any consistent historical practice of public schools using churches for graduations and, even more baffling, Scalia seemed to think that modern America is the same as it was in the 19th and early 20th centuries. But those sort of comments were typical of Scalia, who seemed comfortable inventing a version of the past when the reality of America’s olden days did not actually mesh with his worldview.

Unlike other justices, Scalia had a habit of popping off outside of court. In 2013 he made headlines when he told New York magazine that he believes in a literal devil. “Yeah, he’s a real person,” Scalia said. “That’s standard Catholic doctrine!”

Occasionally Scalia’s loose lips got him into trouble. In 2003, the combative justice had to recuse himself from a case challenging the use of the phrase “under God” in the Pledge of Allegiance after he made remarks about a lower court’s ruling during a speech in Fredericksburg, Va.

And, despite being frequently lauded as a genius, Scalia had a poor grasp of modern science. One of his first church-state cases was 1987’s Edwards v. Aguillard, a challenge to a Louisiana law requiring “balanced treatment” between evolution and creationism in public schools.

A court majority of seven justices had no problem seeing that the law was clearly intended to promote fundamentalist Christianity. Not Scalia. He swallowed the creationists’ arguments whole.

“The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it,” Scalia wrote in dissent. “Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that ‘creation science’ is a body of scientific knowledge, rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation’s stated purpose must be a lie.”

Had the scheme stood, millions of Louisiana schoolchildren would have been subjected to sub-par science education that could have crippled their future prospects. This did not bother Scalia one whit.

Scalia also wrote the majority opinion in 1990’s Employment Division v. Smith, a controversial decision that overturned decades of established law dealing with the “free exercise” of religion. Scalia’s sweeping opinion led Congress to pass corrective legislation called the Religious Freedom Restoration Act. The impact of that is still being felt today.

Gregory M. Lipper, Americans Uni­ted’s senior litigation counsel, said Scalia’s career was marked by a tendency to bring church and state into closer orbit.

“Justice Scalia’s jurisprudence embraced government promotion of religion generally and Christianity in particular – be it official prayers before city council meetings and high-school graduations, Ten Commandments plaques on courthouse walls, or Latin crosses at war memorials,” Lipper told CNN in February. “But as a result, his opinions seemed to dismiss concerns about the religious liberty of religious minorities, atheists and agnostics, among others. Unfortunately, those who don’t share their elected leaders’ religious beliefs are often unable to participate fully in public life when the government abandons religious neutrality.”

Despite such tendencies, Scalia once received an award named after Thomas Jefferson, the man who coined the phrase “wall of separation” between church and state and the Founding Father (besides James Madison) who would have been most likely to reject church-state union.                               During his acceptance speech for the 2008 Thomas Jefferson Medal in Law, which was given at the Jefferson-founded University of Virginia, Scalia claimed: “Thomas Jefferson and the other Founding Fathers never intended to eliminate religion from government,” despite the fact that while president, Jefferson didn’t issue prayer proclamations.

While Scalia’s legal legacy will be one that constitutional scholars may ponder for years to come, the death of the controversial jurist caused a more immediate concern: When will he be replaced, and by whom? With the GOP-dominated Congress locked in an ongoing partisan battle with President Barack Obama, U.S. Senate leadership has vowed not to confirm anyone Obama appoints in the hope that a Republican candidate will win the presidency in November. As this issue of Church & State went to press, there was no evidence that Senate Republicans were reconsidering that position – in fact, the leadership was doubling down on it.

In the meantime, any decision in which the high court deadlocks at 4-4 will result, essentially, in a non-decision; the opinion will not serve as precedent and the lower court’s ruling will stand.

These tie votes could have dramatic consequences. At the time of Scalia’s death, cases dealing with limits on abortion, access to birth control and taxpayer aid to houses of worship were pending on the docket. His absence from the court shifts the balance fundamentally. Rulings that might have been 5-4 against separation of church and state might now deadlock.

Not everyone is satisfied with that scenario. In a truly wacky proposal, one legal observer suggested that Scalia be allowed to vote from beyond the grave. During a February interview with American Family Association’s American Family Radio, Hans von Spakovsky of the Heritage Foundation claimed that Chief Justice John Roberts must count Scalia’s vote for cases in which the justices had previously conferenced.

“After oral arguments before the court, the justices leave the courtroom and they go to a conference room in the Supreme Court building and they take a vote,” the former George W. Bush administration official said. “So that’s the point at which they know how a case is going to be decided and the chief justice then makes assignments of who will write the majority opinion and etc. I think the chief justice has an absolute obligation to give credit to Scalia’s vote in those cases that have already been decided, even if he didn’t write his opinion yet, because they know how he would have voted.”

  Others, such as Americans United Executive Director Barry W. Lynn, simply encouraged members of the Senate to do their duty and swiftly replace the deceased justice.

“The high court is closely divided on a number of important issues, not just church-state separation,” Lynn said in a February statement. “Justice Scalia’s death, coming as it does during an election cycle, is an important reminder of the interplay between our three branches of government. The president nominates Supreme Court justices, with the Senate given the task of confirming or denying them. The American people deserve a court that is fully staffed with all nine members. There should be no delay in starting the process of finding a replacement.”

A figure like Scalia is difficult to sum up, but there is one anecdote that may be up to the task. In 2006, he attended a special mass for members of the legal profession at the Cathedral of the Holy Cross in Bos­ton. As he exited, a reporter with the Boston Herald asked Scalia how he dealt with those who complain about his public displays of religiosity.

“You know what I say to those people?” Scalia said, while making a gesture with his fingers under his chin that some said was obscene – though Scalia himself denied that it was uncouth. “That’s Sicilian,” he said, adding, “It’s none of their business. This is my spiritual life. I shall lead it the way I like.”

He certainly did, for better or worse.

 

Editor’s Note: As this issue went to press, President Barack Obama named Merrick Garland, a 19-year veteran of the federal courts, to fill the open seat. Look for more details in the May Church & State.