by Matt Barr

Tripping over the word "permits"

Prof. Balkin has a post (pointer from the invaluable SCOTUSblog discussion area) the upshot of which is glee that we can finally prove with Mr. Justice Scalia's own words that he's a hypocritical theocratic boob. I don't share his glee, so probably look at the issue a little more critically.

The post argues that "Justice Scalia[]... is willing to enshrine a notion of first class and second class citizens based on religion -- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot."

While as I've posted I think Scalia makes points unhelpful to the issue, there is certainly nothing there like Prof. Balkin describes. Dispose quickly of the notion, suggested for effect, I'm sure, that Scalia's dissent argues that some group of citizens "cannot" have government acknowledge their religion in public pronouncements and displays. It is the McCreary County majority that's in the business of prohibiting things, not Scalia's dissent.

Beyond that, Prof. Balkin reproduces some of the meat of Scalia's dissent, which I linked to in the previous post, but the blockquote is impenetrable, suffused as it is with snarky asides. Here is a shorter, unadulterated snippet, with paragraph break added:

If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.

With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.

Maybe it's not the word "permits" being misread as "mandates" that's the problem; maybe it's the failure to connect "disregard" to "public acknowledgment of religious belief." I would disagree myself with the proposition that the Constitution permits the "disregard" of certain people based on their religious beliefs. It would not be on point in this context, though, unless it's unclear to the reader that Scalia is saying that public acknowlegement of religious belief need not include polytheism or atheism to square with the Establishment Clause. More broadly, the argument is that the Constitution does not require government neutrality between or among various religions in pronouncements or displays.

Scalia offers a number of examples of words and actions of the first Presidents, Congresses and Courts which tend to illustrate that the people who proposed, drafted and ratified the Bill of Rights did not think the Establishment Clause prohibited public acknowledgment of religious belief, nor a public acknowledgment of belief in a Creator. (Being a proper originalist and not concerned with matters prior to the adoption of the Constitution, Scalia does not mention that those who plotted, declared and fought for independence from Britain thought it self evident that they were endowed by their Creator with certain inalienable rights, so I will.) Public invocation of God, Scalia argues, is indistinguishable from public display of the Ten Commandments, because both are a "tolerable acknowledgment of beliefs widely held among the people of this country."

The constitutional argument does not rely on the fact that the canonical beliefs of 97.7 percent of Americans include a single God involved in day to day affairs (the "widely held" part). If it did, Prof. Balkin's exploration of why it wouldn't be permissible for the government to pray to Jesus might matter. Instead, it relies on the surely more relevant fact that the Constitution does not prohibit public acknowledgments (certainly, given how God was thrown around by the Founders, and continues to be today) or displays (Scalia argues, being essentially the same) -- that these do not amount to an Establishment. Prof. Balkin quotes Scalia saying so, but decides to respond by asking what the difference is between 91 and 97 percent -- and then (eventually) dismisses his supposed advocacy of a "tradition of establishment of monotheism" (emphasis added). There is a space larger than two paragraphs between "governmental invocation of God is not an establishment" and a supposed "establishment of monotheism."

Scalia's aren't particularly revolutionary arguments, and they may or may not be persuasive, but they do not boil down to the Constitution creating a first- and second-class of citizens based on their religious beliefs.

Browse books from Amazon.com: