With Judges Like This, Who Needs The First Amendment?

Supreme Court Justice Antonin Scalia, the longest serving of the current justices, said two days ago that it’s okay to favor one religion over another, and to favor religion over secularism.

“I think 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 nonreligion… That’s a possible way to run a political system. The Europeans run it that way. And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”

Scalia, a devout Roman Catholic, went on to say it’s “just a lie” that “the state must be neutral, not only between religions, but between religion and nonreligion”.

Just as a refresher, the only two places the Constitution explicitly mentions religion are the First Amendment and Article 6:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (First Amendment)
“…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (Article 6)

Just to be clear, Scalia is such a devout Catholic that he doesn’t even agree with the Catholic Church anymore. When the Church decided in the 1960s to start using the languages of parishioners during mass, instead of a long-dead tongue, Scalia thought that was too forward-thinking and now drives out of his way to attend masses spoken in Latin.

He claims to be an originalist — someone who interprets the Constitution by its original intent, without applying modern standards to it — in opposition to other justices who believe in a “morphing Constitution” (his words).

The problem then, is that it’s often difficult to agree on the original intent of the Constitution’s authors. Another question is: Would the authors of the Constitution have used different words if they knew what we knew today?

He maintains, as do other originalists, that because the founders of the U.S. were primarily Christians, that they meant Christianity when they said “religion”. And that the writers of the Constitution, when saying Congress couldn’t establish a religion, actually meant they couldn’t choose among the Christian denominations (as several states had done by that time).

If they had meant “Christianity” they would have said “Christianity”… If they had meant “choose among the denominations” they wouldn’t have said “establishment of religion”.

This, to me, is unnecessarily and unfairly slurring our founding fathers. There’s no question that many of the men who wrote those enduring documents were Christians, and those who weren’t seem to have been in closely related faiths. For example, none of them were Muslims or practiced Orthodox Judaism. And Mormonism hadn’t been invented yet. A few were suspected agnostics or atheists, but they didn’t make a public show of it.

But what they were is educated. More than half of the Constitutional Convention delegates were college graduates. Several who didn’t hold degrees had been self-educated or taught by preachers or parents; they could read and speak Latin and Greek. They were informed about history as well as current events around the world — as much as anyone could be without the internet or 24-hour cable news channels.

In other words, they were aware of Jews, Muslims, and people of other religions. They were aware too of the “nonreligious” people to whom Scalia refers. These men were not morons (and I think Scalia would agree).

If they had meant “Christianity” they would have said “Christianity”.

They specifically used the word “religion”, rather than “Christianity”.

They also knew the difference between “religion” and “denomination”.

If they had meant “choose among the denominations” they wouldn’t have said “establishment of religion”.

Just to reiterate, the delegates to the Constitutional Convention were not idiots. They hammered out these words over months. Many drafts were heard and discarded. The same was true for the first several amendments, especially the first of them.

If Scalia is going to claim to be an originalist, he needs to give the founding fathers more credit. They knew what they were doing.


I also found of interest these Scalia quotes (both from a 2013 interview with New York Magazine):

“Words have meaning. And their meaning doesn’t change.”

Because the meanings of words never change. Wow. Is he gay*? Ever worn thongs* at the beach? Own a cell*? Feel fantastic*? Is he punk*?

* The meaning of the word gay has changed, during Scalia’s lifetime.
* The meaning of the word thong has changed, during Scalia’s lifetime.
* Common usage of the word cell has changed, during Scalia’s tenure on the bench.
* The meaning of the word fantastic has changed, during Scalia’s lifetime.
* The meaning of the word punk has changed, during Scalia’s tenure on the bench.

The 1960s marked the transition in the predominant meaning of the word gay from that of “carefree” to the current “homosexual”. When I was a kid, flip-flops were called thongs; now the word primarily refers to a revealing piece of underwear or swimwear. Fantastic meant “only in the imagination” until the late 1930s. It wasn’t until the 1970s that punk changed.

There’s an entire branch of linguistics devoted to studying the way words change over time. Some of the words that have shifting meaning, unlike the fun examples I gave above, are in the Constitution. This is scary to me, because Scalia is still on the bench. And because many Americans agree with him about quite a lot.

“You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! … And you can’t have a movie or a television show without a nude sex scene…”

Because he only watches HBO and R-rated movies? Where has he been that he thinks you can say the F-word and portray nude sex on TV or in most movies? Also, what does he have against “ladies”? Only gentlemen can use profanity without bothering him?

He’s not aware that TV broadcasters were fined for accidentally broadcasting Janet Jackons’s nipple for one second during a live performance? (And that case went to the Supreme Court.)


To be clear, I don’t think everything Scalia has done is bad. He’s clearly an educated man and his opinions are well-considered. Only a racist could argue with his statement: “In the eyes of government, we are just one race here.” He has upheld the Fourth Amendment, at least in a couple of cases. He supports the right to bear arms. He recused himself from a case about an atheist’s daughter not wanting to recite the Pledge of Allegiance, since he had publicly stated his opinions about a lower court’s ruling.

But he has enough scary opinions — especially regarding religion, women, and minorities (Voting Rights Act) — that he doesn’t need to be on the bench.

Fortunately, his term won’t last forever; just until he retires or dies. I think it’s time we shorten the term for Supreme Court Justices. The average term is 16 years; Scalia has been there for 28.


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