Scalia on the Constitution's view of religion

Wow, indeed. Even as the husband of an evangelical Christian pastor, I hold the position that the First Amendment applies to both the religious and the areligious. It has to. Drives some of my brethren nuts sometimes, but it's the only reasonable position to take, really.

The Constitution can be a tricky thing though. How many people say that the Founders couldn't have conceived of semi-automatic guns, but ignore the First Amendment corollary of high-speed printing presses, or even this here internet? And what's a "search?" What's "reasonable?"

He's right in one aspect. The Constitution is not a living document, any more than a written contract is. But our interpretation of it is living and changing, and will.

"We do Him [God] honor in our pledge of allegiance...”

We added "under God" to the pledge of allegiance in the 1950s during the Red Scare. It wasn't there when originally written.

cmhbob said:

The Constitution can be a tricky thing though. How many people say that the Founders couldn't have conceived of semi-automatic guns, but ignore the First Amendment corollary of high-speed printing presses, or even this here internet?

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Except it's still speech. Its still the press. Still words. High-speed printing presses or the Internet don't make the words any more deadly.

Unlike going from single shot flintlocks to automatic weapons that can shoot hundreds of rounds with just a pull of a trigger.

"...if you believe in a morphing Constitution."

So Judge, every change since Hancock's signature is wrong?

Williebee said:

"...if you believe in a morphing Constitution."

So Judge, every change since Hancock's signature is wrong?

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You don't really think that's what he means, right?

He did say:

“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 non-religion,”

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And, as far as I know, that's true. So is the one other thing he stated:

Scalia knocked secular qualms over the role of religion in the public sphere as “utterly absurd,” arguing that the Constitution is only obligated to protect freedom of religion -- not freedom from it.

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The idea that protecting freedom of religion doesn't mean protecting freedom from it doesn't make sense to me, because in practice, an atheist's discomfort with pledging to God in the Pledge of Allegiance (for example) isn't radically different than the objection someone might raise because they belong to a faith that prohibits oaths, or because they associate the God in the Pledge with the Judeo-Christian god, and they worship another deity.

Not to mention, there are religions that don't necessarily require belief in a higher power. My understanding of Buddhism is that some practitioners don't believe in a specific deity. There's also atheistic Satanism.

And the way some religions work, anyone who doesn't subscribe to that particular faith may be seen as a nonbeliever. Some Christians believe very strongly that the Christian God is the one true god and that accepting Jesus is necessary for salvation. For people who hold that view, there's not necessarily a big difference between an atheist and, say, a Wiccan.

When it comes to applications, I think there's a difference between acknowledging a sort of religious heritage vs blatant disrespect and treating those of a different religion as a Second Class Citizen. I can't say I have a huge objection, for example, with people swearing in on a Bible for court cases or having the word "God" in loyalty pledges and aspects of that nature. Maybe that already makes me too much of a religious freak but I do not see the problems with that. However, let's say that in the military Jews, Wiccans and other Pagans, Hindus, Muslims, Buddhists and Confucians were denied the same worship circles of Christians and told they were not being real Americans and not being given a chance to practice their religion as Christians. There I would totally and completely draw the line, and I suspect even Scalia would to. And indeed I would be vary wary of anyone who would not draw the line there.

Scalia is a devout conservative Catholic whose opinions on all social issues are informed primarily by his religious beliefs. His main interest in law concerning these issues is how the law and the Constitution can be interpreted to support his own religious views and make them the law of the land.

I say we replace the supreme court justices with homeless people...I can't imagine they would have less of a grasp on the Constitution than the current holders of these seats do. But, that's just me...

Prozyan said:

He did say:



And, as far as I know, that's true. So is the one other thing he stated:

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It's so untrue it makes me honestly wonder at what point someone can drag Scalia in for some kind of neuropsych evaluation.

I mean he's obviously allowed to have his opinions, increasingly batshit as they are, but a. they're getting increasingly batshit, and b. they're getting further and further from any semblance of law or sense or, kind of important in this case, history.

The Constitution provides both freedom OF and freedom FROM. That's not a new or marginal interpretation - it's pretty much the standard interpretation of the Amendment. There are two clauses: free exercise (of) and establishment (from).

If he's arguing establishment is only about particular religions, not religion, I'd like to hear an explanation of what's not a particular religion.

Is the man decrying Engel? I gave up trying to figure out what he thought he was saying a while back but I don't see an option to that here.

I think it's utterly elementary that freedom FROM partaking in religion should be just as protected as freedom OF partaking in it.

Th underlying point is that you can partake of whatever you want, or abstain from whatever you want.

My fear is that he is BADLY articulating his preference for the public just plain leaving alone all kinds of already-established architectural things like (hypothetically speaking) a stone carving of the Ten Commandments hanging above the front entry doors of a very grand county courthouse. That's a different matter entirely than his statements here that he thinks it's okay to deny some people rights.

Okay, now THIS has to be one of the most fucked up things I've read coming from a Justice's lips:

In a dissent joined by Justice Thomas, Scalia argued that “at a minimum,” the Supreme Court should remand the case for reconsideration, noting that “the First Amendment explicitly favors religion.”

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Explicitly favors religion??

He is clearly calling for there to be two classes of American citizen here: those who are religious and those who are not. This is the ultimate slippery slope which leaves non-religious people in fear of everything, including their property, their freedom or even their lives.

blacbird said:

Planet Earth to chmbob:

I'm pretty sure the Founding Dads didn't expend a charmed quark of energy on the idea of semi-automatic guns, or high-speed printing presses, or the internet.

But the most eloquent and influential of them, Tom Jefferson, most certainly did express distinct ideas about government and religion.

Which is exactly why the religious right-wing detest him and don't mention him in the "American History" textbooks they want to foist on U.S. public schools.

caw

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Heh. Jefferson's pretty much marginalized by both wings of the Hamiltonian Party. Any mention of his wisdom is generally met by cries of "racist slave-owner" from the left as well as the echos of ''atheist" from the right. He was far too much the individualist for today's political elite, no matter what color tie they wear.

Lucky for them he was shipped overseas before the Constitution was written to replace the Articles of Confederation.

Jefferson was not among the founding fathers who gathered in Philadelphia; he was in Paris serving as minister to France. John Adams was also abroad, serving as minister to Great Britain. Samuel Adams, John Hancock and Patrick Henry—who turned down an invitation because he “smelt a rat in Philadelphia, tending toward the monarchy”—also did not participate.

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Patrick Henry had an amazing sense of smell, as it turns out.

Herre's another whopper:

In another public appearance on Wednesday at the University of Colorado Boulder Law School's annual John Paul Stevens lecture, Scalia compared his efforts to restore constitutional originalism to the challenges faced by "Lord of the Rings" protagonist Frodo Baggins.

“It’s a long, uphill fight to get back to original orthodoxy. We have two ‘originalists’ on the Supreme Court,” Scalia said, referencing Associate Supreme Court Justice Clarence Thomas. “That’s something. But I feel like Frodo … We’ll get clobbered in the end, but it’s worth it.”

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So ... Good vs. Evil ... an apocalypse-preventing quest which can only be achieved via the destruction of some terrible evil thing.

This man is scary.

regdog said:

Fuck, he's Sauron and just needs the One Ring to rule us all.

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I've been calling it Mordor on the Potomac for a long time now...

emax100 said:

When it comes to applications, I think there's a difference between acknowledging a sort of religious heritage vs blatant disrespect and treating those of a different religion as a Second Class Citizen. I can't say I have a huge objection, for example, with people swearing in on a Bible for court cases or having the word "God" in loyalty pledges and aspects of that nature. Maybe that already makes me too much of a religious freak but I do not see the problems with that.

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The problem with those observances is that they conflate a specific religion with our government, clearly violating the establishment clause.

Not to mention the possibility of prejudicing the jury or a court official when someone chooses not to swear on the Bible after it has been established as the de facto default for securing the honesty of someone testifying.

Liosse de Velishaf said:

The problems with those observances are that they conflate a specific religion with our government, clearly violating the establishment clause.

Not to mention the possibility of prejudicing the jury or a court official when someone chooses not to swear on the Bible after it has been established as the de facto default for securing the honesty of someone testifying.

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Yep. They should have people swear on a copy of the Social Contract.




What?

regdog said:

One thing that really bothers me. 200 + years after the fact, fools are coming along saying "Well, the Constitutions says "this" but what the Founding Fathers really meant was this.

No, they meant what they wrote.

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Well, they meant what they meant, and they wrote what they wrote, but there's not necessarily a 100% correlation between how we read what they wrote and how they meant it to be read.

cornflake said:

The Constitution provides both freedom OF and freedom FROM.

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Right. The government can't establish an official state church, for example. But that's certainly an example of freedom from religion.

rugcat said:

Scalia is a devout conservative Catholic whose opinions on all social issues are informed primarily by his religious beliefs. His main interest in law concerning these issues is how the law and the Constitution can be interpreted to support his own religious views and make them the law of the land.

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I think this is true to a large extent, but I'd like to throw in a wrench, if possible. Scalia's textualism is supposed to limit a judge's discretion, not expand it. That should make it harder for a judge to "produce" outcomes that agree with his personal views. If someone responded by pointing out that Scalia manages to produce those outcomes anyway, I'd probably agree. But then again, are there many judges who don't fall into that trap? How often do others on the court interpret the law to support their own views? Does it actually happen more often with Scalia, specifically?