I drove down to Metairie, in the New Orleans suburbs, with Ryan Booth today to hear Justice Antonin Scalia talk about religious liberty. It turned out to be an unusually great day, not because of Scalia’s speech (which was short, with no Q&A, given that Scalia’s plane had been late, and he had a luncheon to get to), but because of the people I met while we were all waiting for him to show. More on that tomorrow. I want to talk here about what Scalia said.
Here’s the Times-Picayune‘s report on the talk. It’s a fair and accurate rendering of what he said. Excerpt:
The Constitution’s First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn’t mean the government can’t favor religion over nonreligion.
That was never the case historically, he said. It didn’t become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.
If people want strict prohibition against government endorsement of religion, let them vote on it, he said. “Don’t cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it.”
I took notes on the talk, and want to add a few things.
Scalia began by quoting Robert F. Kennedy, who said, “Some men see things as they are and say, why. I dream things that never were, and say, why not.”
Scalia said that of all the religion clause (the Establishment clause, and the Free Exercise clause) cases from which he’s dissented over his years on the court, the one that upset him the most (“by which I mean the one that strayed farthest from the proper methodology”) was Texas Monthly vs. Bullock (1989). The case had to do with the fact that the State of Texas exempted religious publications from the state sales tax.
“The case was decided by a mechanical application of the Lemon Test, not by long-accepted practices of the American people,” he said.
The Lemon Test says that a law violates the Establishment Clause if it favors religion over secularism — not one church or denomination over another, but religion over non-religion, said Scalia.
“That is the so-called ‘neutrality principle’ on which the Court continues to pronounce,” he cracked.
I say “cracked” because he was characteristically (and appropriately, if you ask me) irascible when he said it, but the point is a massively important one, because the same principle guided the Court majority in, say, Christian Legal Society v. Martinez (2010), which upheld a California law that, in the view of Scalia and other dissenters, unfairly burdened religious groups on campus. I deeply, passionately wish Justice Scalia had talked about how this “neutrality principle” is likely to affect religious liberty in the future, but perhaps it would have been too risky for him to speculate, given that he may have cases involving it coming before him.
Scalia recalled being in Rome on 9/11, getting ready to attend a legal conference. He watched the coverage on TV as he was unpacking, and heard President Bush end his televised address to the nation that night by asking God’s blessing on America, as is customary for American presidents.
The next morning, the justice continued, he saw jurists from other countries, and one of them said he wishes that the leader of his country could publicly ask God’s blessing at a time of national crisis. But it was forbidden there, as it is in more than one European country.
“This is what the French call laicisme. The principle of secularism,” said Scalia. “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.”
Scalia said that judges today always favor abstract principles over the lived experiences and customs of the American people. He said that sometimes the customs have to change (that is, be changed by Court ruling) because of the abstract principle, but the presumption should be that the abstract principles must yield before lived experience and customs. Scalia told a story about what he called “The Shakespeare Principle” as elucidated by a priest who taught him in high school (“In those days, Jesuits could be tough and crusty,” he wisecracked, an implied swipe at what’s become of the order.)
“One of my classmates — I remember his name, Antonelli — volunteered some criticism of Hamlet. Very sophomoric, of course. Fr. Matthews looked at him with a steely glaze, and said to him in his Boston accent, ‘Mister, when you read Shakespeare, Shakespeare’s not on trial, you are.’ I have always thought that a very good principle useful in many areas of life, including the law. What Shakespeare is to high school students, a society’s long-established traditions are to the jurist. He does not judge them; he is judged by them.”
He concluded his talk by recalling RFK’s quote, saying it originally came from Shaw’s relatively obscure play, Back to Methuselah — and RFK misinterpreted its meaning. Said Scalia:
“Shaw’s line … goes as follows: “You see things and you say, ‘Why; but I dream things that never were and say, Why not?” Shaw had the good sense to know that this motto is tempting, but not really a sound guide to human action. You see, in the play, the lines are attributed to a serpent, and addressed to a woman named Eve.”
With that, he smiled, walked off the stage, and went to lunch.
I hope Scalia, il Magnifico, lives to be a hundred and ten, and dies on the bench, fighting.