November 2009 Church & State | People & Events

Justice Antonin Scalia told an Orthodox Jewish newspaper that the Supreme Court has been off base with many of its church-state opinions but is slowly getting back on track.


Government, Scalia insisted, should be permitted to prefer religion over non-religion.


In what was billed as an “historic exclusive interview,” Hamodia, a Brooklyn publication that calls itself “the daily newspaper of Torah Jewry,” asked Scalia a number of questions about the relationship between religion and government.


“I have been here for a long time now – 23 years,” Scalia said. “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.”


Scalia criticized the court for adopting the principle of neutrality, which holds that government should not take sides on theological matters.


“This is not an accurate representation of what Americans believe,” he said. “The court itself has contradicted that principle a number of times, including the case approving tax exemptions for houses of worship 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.”


Continued Scalia, “I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving God out of public life.” He went on to praise a recent decision by the court that restricted taxpayers’ ability to challenge government funding of religion.


Asked about the role of religion in public life, Scalia said, “It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. 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.”


Scalia insisted that generic references to God by government are perfectly constitutional and theologically desirable.


“There is a quote attributed to various people from Bismarck down to Charles de Gaulle,” Scalia said. “I prefer to attribute it to Charles de Gaulle because it sounds like him: ‘God protects,’ he said, ‘little children, drunkards and the United States of America.’ I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court opens its sessions with ‘God save the United States.’ Those things are not insignificant.”


Ironically, Scalia also insisted that his Roman Catholic faith plays no role in his judicial deliberations. He admitted that he would have voted against legalizing abortion in Roe v. Wade but said it wouldn’t have been because of his faith.


In a Sept. 24 post on Americans United’s “Wall of Separation” blog, AU staffer Rob Boston deplored the justice’s comments and insisted, “Scalia has been a complete and utter disaster as far as church-state separation is concerned.”


Boston noted that Americans United opposed confirmation of Scalia, but the Senate voted to put him on the high court anyway.