I may have more to say about the Supreme Court’s religious display cases at a later date although, at a first glance, the decisions announced today don’t appear to break any new ground. In general, the Court’s religion decisions tend to be even more opaque, inconsistent and mind-numbingly tortuous than its decisions with regard to other subjects. Or, as Souter wrote, they are “fact-intensive” cases —which is a polite way of saying that the Court declines to identify any clearcut principles which it will deign to explain to the rest of us, and upon which we can rely in the future. In one important sense, every case is “fact-intensive,” and there is no case so simple that a lawyer or judge cannot make it appear to be “fact-intensive” to a degree which makes it defy all attempts at basic comprehension, if he or she wishes to do so. Moreover, the Court’s religion decisions often convey the impression that no graspable principles can possibly be discerned from the Constitution in any manner at all. That is a position I strongly disagree with, but that is a complicated subject for another time.
In that very limited sense—and although I come to a conclusion which is the direct opposite of his—Scalia is correct to note the mishmash the Court has made of its jurisprudence in this area in his dissent in the McCreary case.
At the moment, I want only to note one enormously regrettable aspect of Scalia’s opinion—a tactic which is the equivalent of a very low blow delivered in the guise of judicial argument. Here is the opening of Scalia’s dissent:
I would uphold McCreary County and Pulaski County, Kentucky’s (hereinafter Counties) displays of the Ten Commandments. I shall discuss first, why the Court’s oft repeated assertion that the government cannot favor religious practice is false; second, why today’s opinion extends the scope of that falsehood even beyond prior cases; and third, why even on the basis of the Court’s false assumptions the judgment here is wrong.
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless______.’ It is of course absolutely forbidden.”
That is one model of the relationship between church and state—a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is [a] . . . secular . . . Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 (G. Flanz ed. 2000). Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me God.” See Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” 1 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926). The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers, 463 U. S. 783, 787 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Id., at 788.
And with that, Scalia is off and running. On that last specific point—that the first Congress “enacted legislation providing for paid chaplains in the House and Senate”—Scalia does not think it worthy of mention that at least one of the Founders thought that such legislation unquestionably violated the new Constitution, as he wrote some years later.
In one of his most famous Detached Memoranda, James Madison wrote on the great dangers of state-sanctioned religion to the new republic at considerable length (from 1817):
The danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U. S. They have the noble merit of first unshackling the conscience from persecuting laws, and of establishing among religious Sects a legal equality. If some of the States have not embraced this just and this truly Xn principle in its proper latitude, all of them present examples by which the most enlightened States of the old world may be instructed; and there is one State at least, Virginia, where religious liberty is placed on its true foundation and is defined in its full latitude. The general principle is contained in her declaration of rights, prefixed to her Constitution: but it is unfolded and defined, in its precise extent, in the act of the Legislature, usually named the Religious Bill, which passed into a law in the year 1786. Here the separation between the authority of human laws, and the natural rights of Man excepted from the grant on which all political authority is founded, is traced as distinctly as words can admit, and the limits to this authority established with as much solemnity as the forms of legislation can express. The law has the further advantage of having been the result of a formal appeal to the sense of the Community and a deliberate sanction of a vast majority, comprizing every sect of Christians in the State. This act is a true standard of Religious liberty: its principle the great barrier agst usurpations on the rights of conscience. As long as it is respected & no longer, these will be safe. Every provision for them short of this principle, will be found to leave crevices at least thro’ which bigotry may introduce persecution; a monster, that feeding & thriving on its own venom, gradually swells to a size and strength overwhelming all laws divine & human.
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Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.
The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.
If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt.
Whatever one’s view of Scalia’s jurisprudence, he is unquestionably a brilliant man. Surely he is familiar with Madison’s writing on this question. Yet somehow these views of Madison’s are omitted from Scalia’s historical recitation (unless I missed the reference in my first overview, which I strongly doubt).
But leave that aside for now. Return to Scalia’s invocation of 9/11—in the opening of an opinion which he knows was eagerly awaited and will be reviewed by many with great care and attention. We have all witnessed many opportunistic and nakedly political purposes for which the profound tragedy of 9/11 has been appropriated. But I consider this to be by far the worst.
Even though its performance in recent years could legitimately have led many observers to expect no more at this point, to soil decisions which are supposed to represent the most deliberate, careful, respectful, intellectually serious and—dare one say it—judicious thought at the very apex of the United States’ system of justice with this kind of cheap grandstanding is beneath contempt. Whatever Bush or anyone else said in the wake of events on that terrible day, such remarks are of no legal consequence whatsoever, and they are utterly irrelevant—which renders Scalia’s mention of Bush’s comments gratuitous in the extreme.
You may have thought that individuals wearing black robes did not deliver low blows and were incapable of cheap shots, at least in their published opinions. Scalia proved you terribly wrong today.
What a disgrace.
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