Scalia was not an originalist on church-state separation
By Ken Burrows
A little over a month before he died on February 13, Supreme Court Justice Antonin Scalia told a Catholic high school audience in Louisiana that “there is no place in our constitutional tradition” for the argument that the state should refrain from endorsing religion. It was a position he embraced persistently, on the bench and in public and private speeches. This is the same justice who was quoted in a 2013 New York magazine interview as insisting it is only rational to believe in the devil. The same justice who argued in a 2005 Supreme Court case that the Ten Commandments stand for the direction of human affairs by God and are the basis of our institutions. The same justice who once said, echoing Jerry Falwell and Pat Robertson, that God had been good to America because we honor him. This was a justice who took his religion seriously.
Yet throughout his tenure on the Court, Scalia also made a point of saying his judicial philosophy was committed to “originalism” (also called “textualism”), defined as interpreting the Constitution according to the meanings and intentions of the Framers. But here we have a disconnect. Because while Scalia may have adhered to originalism in deciding most issues before the Court, he freely and consistently abandoned it when it came to cases that involved separation of church and state. On this he eagerly dismissed, often pejoratively, the Framers’ intents he claimed to revere and appeared to have little familiarity with the staunch separationist views of the two most pivotal Framers —James Madison, the Father of the Constitution, and his colleague Thomas Jefferson. On this issue Scalia did not take his orginalism seriously.
A couple examples serve to illustrate his discontinuity. In the Supreme Court’s Greece vs. Galloway decision in 2014 approving of town boards opening meetings with predominantly Christian prayer, Scalia wrote that the Establishment Clause is not violated when nonbelievers experience “subtle pressures” to conform to religious favoritism, because such pressure is not the same as the religious “coercion” the Framers were focused on eliminating.
Further, he said the church-state relationship in the 18th century was “far from settled,” and he concurred with Justice Clarence Thomas in Greece that this lack of consensus meant the First Amendment is “agnostic” on the subject of church establishments by individual states; so in his view the states are thus, constitutionally, free to establish religions if they so choose. It’s a position that would surely leave Madison and Jefferson dumbstruck.
To Scalia, not all religions were equal
In a 2005 decision in McCreary County v. ACLU of Kentucky that banished a Ten Commandments display from the McCreary and Pulaski County courthouses, Scalia defended the Ten Commandments, but he didn’t stop there. He went on to say that the Establishment Clause does not protect religious minorities or nonbelievers from majoritarian sentiment, and it is a “demonstrably false principle that the government cannot favor religion over irreligion.” In addressing the conflict between minority religions or nonbelievers and majority religious belief, Scalia astonishingly claimed, “Our national tradition has resolved that conflict in favor of the majority,” so the Establishment Clause “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”
(Adopting his logic, one could also say the Constitution permits disregarding Muslims, Jews, Quakers, or any other “minority” faiths. By contrast, Justice Sandra Day O’Connor, concurring with the majority in McCreary, said, “We do not count heads before enforcing the First Amendment.”)
So according to Scalia, the Constitution gives a green light to “disregard” citizens who embrace faiths, or nonbelief, that majorities disapprove of. It must be asked: Not only did Scalia have a truncated, if not warped, grasp of the Founders’ history, but did he even understand the most basic meaning of religious freedom as the Founders envisioned it? Did it cross his mind that it was people like Madison and Jefferson who, in the founding era, salvaged his own often maligned Catholicism from the “disregard” heap, thanks to their demand that government have no preferences or influence in matters of religion?
In a 1992 Supreme Court case, Lee v. Weisman, two parents successfully challenged the constitutionality of clergy-led prayers being said at their daughters’ public school graduations. The Court’s majority viewed that situation as making students face real pressures to join in prayer, so they ruled the prayers ought not be allowed. Scalia in dissent noted that President Bush had asked people attending his inauguration to bow their heads in prayer, and he said these students and their family should be willing to do the same. In other words, Scalia’s view was that this family should, at least temporarily, abandon their own freely and conscientiously held faith and accept the majoritarian religion in its place.
Not a “ghoul” to Madison or Jefferson
Scalia was known for acerbic, colorful opinions. One that’s been frequently referenced since his death was his describing something called the “Lemon test” as being akin to a “ghoul in a late-night horror movie that repeatedly sits up in its grave” to frighten people about government crossing the line of church-state separation. But what is this Lemon test? It’s derived from a 1971 Supreme Court case, Lemon v. Kurtzman, which ruled the Establishment Clause was violated when public school monies were used to reimburse private schools (mostly Catholic) teachers’ salaries when they taught using public textbooks and instructional materials. Chief Justice Warren Burger (a conservative Nixon pick) used the case to outline a new three-part judicial test for statutes involving church-state separation. Burger said such statutes must 1) have a secular legislative purpose, 2) have a primary effect that neither advances nor inhibits religion, and 3) must not foster an excessive entanglement of government and religion.
Contrary to Scalia’s characterization, such a test would almost certainly not have struck the Founders as “ghoulish,” as a brief look at Madison’s and Jefferson’s views will show. Let’s now examine how their views—their intents—measure up against Scalia’s claimed originalism in matters of church-state separation.
Madison’s views on the proper relationship between government and religion were most enduringly spelled out in his 1785 Memorial and Remonstrance Against Religious Assessments, a 15-point opposition to Patrick Henry’s proposal to use state funds in Virginia to pay teachers of the Christian religion. Here we find Madison making a number of statements of resounding clarity. For example:
“The religion then of every man must be left to the conviction and conscience of every man.”
“In matters of religion, no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance.”
“Instead of holding forth an Asylum to the persecuted, it [Patrick Henry’s bill] is itself a signal of persecution. It degrades from the equal ranks of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority… the bill implies either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension falsified by the contradictory opinions of rulers of all ages and throughout the world; the second an unhallowed perversion of the means of salvation.”
But his Remonstrance was by no means Madison’s only commentary on the subject. In a letter to Edward Livingston in 1822 he opened by saying, “I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction… This has always been a favorite principle with me. … in some parts of our Country there remains a strong bias towards the old error, that without some sort of alliance or coalition between Govt and Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded against. … Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion and Govt will both exist in greater purity, the less they are mixed together.”
Using religion to abridge natural and equal rights
In a post-presidency Detached Memorandum Madison pointed out inconsistencies he saw between government practice and the spirit of church-state separation embodied in the First Amendment. (For one thing, Madison opposed having government monies pay for military or congressional chaplains, calling it unconstitutional.) He refers to attempts that were made by some delegates in Virginia to insert the words “Jesus Christ” after “our Lord” in the preamble to Jefferson’s Statute for Religious Freedom. [Note: In these 18th and 19th century times, terms such as “Lord” referred primarily to God in a generic sense and not to any individual such as Christ.] Madison said such an insertion would have implied “a restriction of the liberty defined in the Bill to those professing his religion only,” and applying the name Jesus in such a context would profane it “by making it a topic of legal discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men.”
Madison’s Memorandum went on to criticize the issuance of religious proclamations by government, saying that although they might be recommendations only, “they imply a religious agency… [and] seem to imply and certainly nourish the erroneous idea of a national religion.” A related problem he saw was that the practice tends to narrow the recommendation to the standard of the predominant sect “and naturally terminates in a conformity to the creed of the majority.” He concluded forcefully that “members of a Govt can in no sense be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot…issue decrees or injunctions addressed to the faith or the Consciences of the people.”
Around 1832, Madison penned another Memorandum in which he called upon states that still had formal ties with religious bodies to emulate Virginia’s example of religious freedom through church-state separation. “Make the example of your Country as pure & compleat,” he wrote, “in what relates to the freedom of the mind and its allegiances to its maker, as in what belongs to the legitimate objects of political and civil institutions.” In other words, a pure and complete separation of religion from government.
For his part, Jefferson most famously expressed his church-state views in his Virginia Statute for Religious Freedom, first drafted in 1777 and passed by the General Assembly in 1786. The statute opens with the statement that “Almighty God hath created the mind free.” Only a few lines later Jefferson notes that even the “Holy author” of religion chose not to propagate faith by coercing the mind, and he goes on to castigate “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions.”
His statute goes on to say “our civil rights have no dependence on our religious opinions” and for a civil magistrate to “intrude his powers into the field of opinion…is a dangerous fallacy, which at once destroys all religious liberty.”
In writing to Dr. Benjamin Rush, a co-signer of the Declaration of Independence, Jefferson said, “Religion is a subject on which I have been most scrupulously reserved. I have considered it a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle.”
Protect every denomination, even infidels
And, of course, there is the well known response Jefferson sent to the Danbury Baptists in 1802 after they’d expressed concern about the security of their own religious freedom. In this period Baptists were a minority faith and were frequently discriminated against and excluded as a result of collusions between government and majority religions. They wrote to Jefferson to ask that he do what he could as president to ensure their religion would be given fair and equal treatment. In his response Jefferson wrote: “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
Yet one more indication of Jefferson’s view on religious preferencing is in his autobiography where he recounts the arduous effort to get his Virginia Statute for Religious Freedom passed. Recalling, as did Madison at one time, that an amendment had been proposed to add “Jesus Christ” after his own phrase “the holy author of our religion,” Jefferson notes: “The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”
The insight Scalia lacked
So the original intents of Madison and Jefferson are abundantly clear, even if Scalia chose to misread or completely ignore them. Scalia insisted that government not only could advocate for religion but also could consider what the “majority” favors in religion and what beliefs can be “disregarded.” He labeled as ghoulish the contention that government and religion should carefully avoid entanglements. He insisted that legislation, courts, and public policies should never stray from the Founders’ original constitutional intents but was untroubled by the practice of appending “so help me God” to the presidential oath even though the phrase is not prescribed in the Constitution, a document that was made 100% secular by original intent.
The Framers embraced a distinction that was revolutionary for its day: the ability to subscribe to a personal faith (most were one brand or another of Deist) while purposefully avoiding imposing it on others. That is, the ability to separate church from state. It’s an insight and a capacity Scalia lacked, as he seemed blinded by his faith.
Scalia might have claimed that nothing in our constitutional history calls for government to remain neutral on religion, but he could have never reconciled this with the fact the Constitution’s main architect advocated for “every new & successful example of a perfect separation between ecclesiastical and civil matters”?
How did Scalia, self-avowed originalist, not see the “original intent” in that?