I wrote the article below in July of 2005 and it certainly could be updated with further instances of the late Justice Antonin Scalia's apparent arrogance and hypocrisy. I think of the late Justice as one of the great rationalizers of all time and his great talent was no more than to artfully justify his very dogmatic religious and political beliefs.
There is no doubt in my mind that he would, on the one hand, use his great writing abilities in favor of some professed judicial principal such as "equal justice under the law" in a case such as Gore v. Bush, and then, in some other case, argue in the exact opposite direction and minimize that very same concept, such as in cases involving affirmative action or gay rights when it suited him ideologically.
I believe that what is missing from most commentary on Justice Scalia is that although he had a sharp intellect, he was so dogmatic and such an ideologue that ultimately he had a terribly negative influence on his country and fellow citizens. It's just another example of how so many praise ideology and strong beliefs when they should, if they care about humanity's well being, instead be repulsed by dogmatism and arrogant certitude.
Gerry Dantone, 2/14/2016
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Justice Scalia and Church-State Separation
By Gerry Dantone
Now that the elections are over, a primary question that many are asking is “what kind of Supreme Court will we have to look forward to?” Keeping in mind that a number of the Court’s judges are elderly or infirm, it is a certainty that President Bush will have the opportunity to nominate a number of prospective new judges who will then serve – for life.
“In 1999, Fred Barnes asked Bush what kind of judge he'd select. "I have great respect for Justice Scalia," he said, "for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends." There you have it. Someone like Scalia, assuming all other qualifications are met, would be the best choice for the Court.” (Weekly Standard, http://www.weeklystandard.com/Content/Public/Articles/000/000/002/796mfykv.asp.)
So what does Justice Scalia have to say on Church-State separation, religion and secularism? Plenty!
From the Positive Atheism website (http://www.positiveatheism.org/hist/quotes/scar_s.htm) and other sites are the following Antonin Scalia quotes:
* “Devout Christians are destined to be regarded as fools in modern society. We are fools for Christ's sake. We must pray for courage to endure the scorn of the sophisticated world.”
-- Antonin Scalia, in a speech at the Mississippi College School of Law (April 9, 1996) (quoted from Dr. James Dobson, "Was America a Christian Nation?" 1996.)
* (Sarcastically) “It is a Constitution that morphs while you look at it like Plasticman... That is contrary to our whole tradition, to "in God we trust" on the coins, to Thanksgiving proclamations, to (Congressional) chaplains, to tax exemption for places of worship, which has always existed in America.”
-- Scalia once again falsely linking some of these “traditions to the era of the Founders (in, Gina Holland, "Justice Discusses Church-State Separation," AP: January 12, 2003).
* “If critics of the Pledge of Allegiance persuaded the public it should be changed then we could eliminate under God from the Pledge of Allegiance, that could be democratically done.”
-- Anton Scalia said this knowing full well that the rights and interests of minorities are never obtained through democratic means. Scalia suggested that decisions such as the Newdow “Pledge of Allegiance” case should be handled legislatively, by politicians who depend upon the popular vote for their livelihoods (from Gina Holland, "Justice Discusses Church-State Separation," AP: January 12, 2003)
* "Did it turn out that by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America? I don't think so."
-- “Born in 1936, Scalia is old enough to remember the photographs that came out of Germany when he was a boy - they were all over the newspapers and news magazines at war's end.
The photos that can be seen, for instance, at www.nobeliefs.com/nazis.htm of the Catholic Bishops giving the collective Nazi salute at the annual April 20th celebration, declared by Pope Pius XII of Hitler's birthday; the belt buckles of the German army, which declared "Gott Mit Uns" ("God is with us"); the pictures of the 1933 investiture of Bishop Ludwig Müller, the official Bishop of the 1000-Years-Of-Peace Nazi Reich. That... photo should be the most problematic for Scalia, because Hitler had done exactly what Scalia is recommending - he merged church and state.
For Scalia’s edification, Article 1 of the "Decree concerning the Constitution of the German Protestant Church, of 14 July 1933," signed by Adolf Hitler himself, merged the German Protestant Church into the Reich, and gave the Reich the legal authority to ordain priests.
Article Three provides absolute assurance to the new state church that the Reich will fund it, even if that requires going to Hitler's cabinet. It opens: "Should the competent agencies of a State Church refuse to include assessments of the German Protestant Church in their budget, the appropriate State Government will cause the expenditures to be included in the budget upon request of the Reich Cabinet."
That new state-sponsored German church's constitution opens: "At a time in which our German people are experiencing a great historical new era through the grace of God," the new German state church "federates into a solemn league all denominations that stem from the Reformation and stand equally legitimately side by side, and thereby bears witness to: 'One Body and One Spirit, One Lord, One Faith, One Baptism, One God and Father of All of Us, who is Above All, and Through All, and In All.'"
Scalia made the comments about Jews being safer where Christians rule than in countries where Church is separated from state in the synagogue that is home to America's oldest Jewish congregation. Scalia noted that in Europe, religion-neutral leaders almost never publicly use the word God.” (Go tohttp://www.commondreams.org/views04/1202-33.htm. The Associated Press reported this on November 23, 2004.)
* So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the lesslikely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!
-- Scalia in “God’s Justice and Ours” in First Things available at http://www.firstthings.com/ftissues/ft0205/articles/scalia.html.
In a recent Supreme Court decision, Scalia displayed not only his religiously oriented Constitutional point of view, but his enormous hypocrisy as well, arguing directly in opposition to his own previously stated views.
The Court decided, 5 to 4, to ban the death penalty for those under the age of 18. Of course, killing someone, as Scalia has said before, is “no big deal” so he of course, supports executing minors. Scalia, in his dissent said: “The court thus proclaims itself sole arbiter of our Nation’s moral standards…”
Yet the Constitution bans “cruel and unusual punishment.” If Congress passed a law allowing a person to be cruelly tortured to death, would Scalia rule it Constitutional? If the Supreme Court is not the arbiter and interpreter of the Constitution, who or what is? Using Scalia’s “logic” consistently, he would have to rule that cruelly torturing someone to death was not “cruel” because the Court was not the arbiter of our Nation’s moral standards!
Yet, of course, when the issue suits him, he wants the Court to be precisely the moral arbiter in HIS way: By assuming the supremacy of HIS specific religious beliefs!
On June 26, 2003, the US Supreme Court stuck down a state ban on same-sex relations, and of course, Scalia dissented writing, “If, as the court asserts, the promotion of the majoritarian sexual morality is not even a legitimate state interest,” laws against “fornication, bigamy, adult incest, bestiality and obscenity” cannot survive the justices’ basis in their ruling… If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits to homosexual couples exercising the liberty protected by the Constitution.”
Scalia is shameless in demanding that homosexuals be deprived of rights accorded others on a moral basis (based on his entirely religious morality devoid of concern for the common good) while lashing out at the Court for prohibiting the executions of minors for moral reasons!
* “St. Paul had this to say (I am quoting, as you might expect, the King James version): Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1–5)
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword.
-- Antonin Scalia in an article in First Things, May, 2002 declaring that government derives its moral authority from God – which of course is completely absent from the Constitution. At the same time he believes in a “Dead Constitution,” one that must be interpreted in the context of the time in which it was written. In other words, as he claims the authors meant it.
In hearings in early March 2005 on the legality of Ten Commandment displays in public facilities such as Courtrooms, Scalia disagreed that the Commandments were secular saying, "If that's what it means, it's idiotic. I don't think anybody is going to interpret it that way. You can't get the Declaration of Independence out of the Ten Commandments." He believes that the officials who put up the displays were saying that "these basic principles that we're governed by come from God."
This is not a problem for Scalia. "We're a tolerant society religiously," he said during the Texas argument, "but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.” The Ten Commandments, Scalia says, are “a symbol of the fact that government derives its authority from God.”
The combination of the idea that God is the moral authority of the government and that the Constitution is “dead” is Scalia’s method of introducing theocracy to the US. If the bible demands it, and a law was on the books at the time the Constitution or Bill of Rights was written, then it allows him to interpret the law in concordance with the Old Testament.
If a law in the late 1700s allowed for a state religion, or a death penalty for gay sex, etc., Scalia would argue that such laws were Constitutional today. A problem deliberately overlooked by Scalia would be the Bill of Rights applying to only the Federal Government until the application of the 14th Amendment. Before the 14th Amendment, states could indeed enact some laws that would now be un-Constitutional.
The above quotes are pretty revealing and Scalia reiterated these ideas using many of the exact same phrases in a speech at a Red Mass, a tradition for Catholic lawyers in DuPage County, Illinois just recently in November 2004.
And what is a Red Mass? According to John Swomley, Professor Emeritus of Social Ethics, St. Paul School of Theology” (http://www.christianethicstoday.com/Issue/039/The%20Red%20Mass%20By%20John%20M.%20Swomley_039_26_.htm):
The Red Mass, a colorful religious ceremony of the Catholic Church, is celebrated in the United States before members of the Supreme Court, members of Congress, and other high government officials…
Supreme Court Justice Antonin Scalia is undoubtedly the More Society’s best-known spokesman. He not only attends national and some state Red Mass celebrations, but speaks on occasion to those lawyers who meet after the Mass. In a formal address to a Catholic audience in Fort Wayne, Indiana, on October 14, 2001, following a Red Mass at the Cathedral of the Immaculate Conception, Scalia was reported by The National Catholic Register as saying, “We attorneys and intellectuals who don’t like to be regarded as unsophisticated can have no greater [role] model than St. Thomas More.”
Speaking of the beheaded advisor to King Henry VIII, the Register indicated that “the saint died because he refused to recognize a king’s authority as being higher than the Pope’s, and his conviction was rejected by society, friends, and ‘even his wife,’ Scalia said” (National Catholic Register, November 4, 2001). Scalia, in effect, was promoting the idea that papal policy is superior to the U.S. Constitution and secular government…
It is obvious that the purpose of the Red Mass and the St. Thomas More Society is not only to promote the Red Mass as a Catholic cultural event in the United States, but also make papal decisions influence the law of the land. The chief resistance to such influence comes from progressive Catholics who oppose patriarchal rule and support women’s rights. Most Protestant denominations are silent under the influence of the ecumenical discussions instituted by the Vatican. (End of excerpt.)
Though there are no recordings of Scalia’s speech, nor a transcript, his point of view is clear. Also clear is certain duplicity: Before a Jewish Congregation in Manhattan shortly after his Red Mass speech, he dropped references to Jesus and claimed that “There is something wrong with the principle of neutrality… The true goal is not neutrality between religiousness and non-religiousness; it is between denominations of religion” (reported by Errol Louis, NY Daily News).
The history of Scalia’s decisions is evidence that this is not true. He has often shown a disdain for minority religions or beliefs, and his stated position that rights can be legislated away contrary to the protections offered to minorities in the Bill of Rights, would seem to back this up. Indeed, Scalia has often shown that he is not interested in neutrality even between religions.
And there is something obviously dishonest about promoting only neutrality between religions and not promoting it between religion and non-religion as well. Is Scalia actually claiming to support neutrality between Catholicism and Zeus-belief? Or Catholicism and Scientology? Or Catholicism and Ethical Culture? Or Catholicism and Islam? Or Catholicism and Buddism? Absolutely not!
It seems probable that Scalia would not normally consider atheism or secular humanism a religion when he states that government should only be neutral between religious denominations. However, you might consider betting the house that he’d reverse himself if considering atheism a religion furthered his purposes instead. Scalia’s infamously uneven use of the concept of “equal protection under the law” in the past is a revealing comparison.
Without ever presenting a compelling case for his belief system, Justice Scalia not only believes, he has made his supernatural beliefs – not the Constitution - his basis for his legal decisions at the nation’s highest court.
Would Justice Scalia prefer death to being made to recognize the authority of a President, Congress or even the Constitution over the authority of the Pope? If we only would believe our ears: isn’t that exactly what Antonin Scalia is trying to tell us?
