Rules Are for Schmucks: Why Scalia Is Wrong

Justice Antonin Scalia spoke at a Catholic high school in Metairie, Louisiana, last weekend about one of his favorite subjects: why it is both OK and a good idea for government to shove religion down Americans’ throats, including the throats of the substantial minority of us who aren’t religious.

He cites multiple reasons for this. One of his arguments is that God likes all the adulation and gives America goodies as a result. “God has been very good to us,” Scalia said. “One of the reasons God has been good to us is that we have done him honor.” This logic isn’t new; it’s the same kind of Pat Robertson reasoning that blamed the September 11 attacks and Hurricane Katrina on America’s drift toward more rights for women and gays.

But by this logic, the more honor a nation does to God, the better off it will be. Scalia, a good Catholic and a well-educated man, must know that of all the nations in the twentieth century, the two that did the most honor to God—in the best, true-religion Catholic way—were Ireland and Spain. Both were run as Catholic theocracies until late in the twentieth century. And both were impoverished, backwards, and miserable by any social or economic standard you want to apply, right up until the time they woke up and started to become more secularized.

Of all the examples he might have picked of ways in which “God has been good to us,” Scalia selected two: that we won the Revolutionary War and that we won the battle of Midway. It’s interesting, though, that we fought the Revolutionary War against a colonial power with an official state church, in part so that we could get rid of such government promotion of religion here. Why would God have picked our side in that fight? As for the battle of Midway, that was much less of a miracle from heaven than it was a triumph of ultra-rational American code-breaking science. We knew exactly the Japanese order of battle; they had no idea where we were. Even I could win a battle that way, without any help from above. Besides, if God had really intended to favor us, there are a couple of thousand American families who wish he’d started showing that favor a few months earlier, at Pearl Harbor.

Justice Scalia pooh-poohs Thomas Jefferson’s famous dictum about “the wall of separation between church and state” in a curious way, by noting that Jefferson also was the principal author of Virginia’s Statute of Religious Freedom. But Scalia, or his speechwriter, really ought to try reading documents before citing them. The Virginia Statute of Religious Freedom was written against the idea that government should be expending its resources to support religion, even on a nondenominational basis. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” I wish politicians today could express themselves so clearly! When government takes my tax money and uses it to maintain giant crosses on public land, or Nativity scenes, or public meetings preceded by prayer, or a faith-based initiative to subsidize proselytizing, it is indeed being “sinful and tyrannical.”

Scalia argues further that the founding fathers could not have intended to restrain the power of government to promote religion because at the time the Constitution was written, religion was “ubiquitous.” Susan Jacoby, though, notes that organized religion was actually at a low ebb in 1790, with as little as 5 percent of Americans being formal members of a church. It took the “Second Great Awakening” of the early nineteenth century to scare Americans back into church. But even if Scalia were right about this, which he isn’t, the fact remains that history, thinking, and legal development did not screech to a halt in 1789. Eighty years later, after a bloody war to undo an institution (slavery) that was more “ubiquitous” than religion in 1789, we enacted another amendment that Scalia conveniently neglects to mention: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

“Any person,” presumably, includes nonbelievers. When government takes my money and uses it to promote the idea that I deserve to be tortured in hell—when government allows religious believers like Kim Davis and the owners of Hobby Lobby to pick and choose which laws they feel like obeying, while nonbelievers like me get no such right—I am not benefiting from “the equal protection of the laws.”

Scalia’s most worrisome argument is that when it comes to religion, constitutional protections shouldn’t matter, and we should just let the religious majority impose whatever rules it wants on the nonreligious minority. In his words:

This is what the French call laicisme. The principle of secularism. Fortunately for us, England was never conquered by Napoleon, so we never had that principle. There are some who would like to impose this on the United States, and I don’t have a problem with that as long as it is done democratically. Don’t cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it.

Aside from the inconvenient historical fact that Napoleon systematically dismantled the secularism that the French Revolution had introduced, Scalia’s majoritarian reasoning would, among other things, dismantle the entire civil rights revolution. Why cram school integration down the throats of an American people in 1954 that had always voted in favor of the supremacy of the white race? Why tell the American people that the Constitution requires blacks and whites to be able to marry each other, when the majority in many states in 1967 clearly felt the other way? When we have Supreme Court justices willing to allow religious majorities to bulldoze constitutional protections for minorities, we have much to worry about—even before President Cruz takes office.

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