Justice Scalia is in the news for comments at a Catholic High School in Metairie, Louisiana. From the AP report:
Supreme Court Justice Antonin Scalia said Saturday the idea of religious neutrality is not grounded in the country's constitutional traditions and that God has been good to the U.S. exactly because Americans honor him. …
He told the audience at Archbishop Rummel High School that there is "no place" in the country's constitutional traditions for the idea that the state must be neutral between religion and its absence.
"To tell you the truth there is no place for that in our constitutional tradition. Where did that come from?" he said. "To be sure, you can't favor one denomination over another but can't favor religion over non-religion?"
From the New Orleans Times-Picayune:
The Constitution's First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn't mean the government can't favor religion over nonreligion.
That was never the case historically, he said. It didn't become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.
If people want strict prohibition against government endorsement of religion, let them vote on it, he said. "Don't cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it."
…
Scalia has long been a vocal advocate for a conservative reading of the First Amendment's clause on religion. In Scalia's view, the courts should interpret it based on the text itself, which doesn't expressly prohibit government support for religion, and common practice.
At the time the Constitution was written, religion was ubiquitous. Scalia noted that Thomas Jefferson, who first invoked the idea of a "wall of separation between church and state," also penned Virginia's religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.
Such deference for a higher power has been consistent ever since, Scalia said.
The American people have clearly demonstrated a tolerance for government support of religion by enacting laws that exempt church property from taxation, he said. Congress even has clergymen on the payroll.
Given the history and subsequent common practice, Scalia called it "absurd" to interpret the First Amendment in such a way that banishes any government expression of support for religion.
(Via How Appealing).
Roger Kimball comments here: Why I Like Antonin Scalia (Part 1 of 678).
RELATED: Recall that last month Judge Richard Posner and Eric Segall argued:
On the basis of [Justice Scalia's] Establishment Clause opinions and his jurisprudence generally, we doubt that he would vote to invalidate the posting of a sign on the White House lawn stating: “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”
In response I wrote:
I'm not sure that's right. As they quote Scalia later, “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 non-religion.” But the sign in the Posner/Segall hypothetical favors one religion over another, not religion over non-religion. Scalia might consider that to be a difference of constitutional magnitude.
Scalia's recent comments seem to bear out my view of the matter.
Posted at 6:56 AM