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Justice Scalia in Louisiana

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.  [1] 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 [2](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 [3], 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 [4] (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 [5]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.

 

 

 

 

 

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116 Comments (Open | Close)

116 Comments To "Justice Scalia in Louisiana"

#1 Comment By Jonathan Scinto On January 4, 2016 @ 7:04 pm

I say this solely as my own personal opinion, but what I would love is Catholic domination. General Christian hegemony would be OK if the former cannot be had, but a descent into overt secularism would not be a welcome turn of events.

Why? Seriously, why do you want Catholic domination? What would it consist of? I get it. You’re a traditionalist Catholic, but why the desire to force it on others? You have opined here before about how you would convert people at the “point of a halberd” if you thought it would work.

What value is there in that? Speaking for myself, if I lived in a Catholic state, you bet your ass I would “convert.” Surprisingly enough, I enjoy not being a marginalized member of society. I think your plan would just result in repeated desecration of the Eucharist, by people like me, who are more than willing to pretend.

#2 Comment By chas On January 4, 2016 @ 8:51 pm

MH – Secular Misanthrophist says:

I would deny that secularism is a religion, as it doesn’t fit either the Merriam-Webster definition, or the definition from my comparative religions class.

Well, who can win against Webster’s and a class on comparative religions?

I wonder though, would the MH be Misanthropic Humanism? Is that a religion or is the Secular Misanthropy? Either way, life’s too short. One is what one thinks. Don’t be a misanthropist. That is like hating yourself. Plenty of good churches out there, and plenty of good people – flaws and all.

#3 Comment By Siarlys Jenkins On January 4, 2016 @ 9:31 pm

Because “due process” and “equal protection” mean nothing…

Assumes facts not in evidence. These phrases certainly meant something to those who drafted the Fourteenth Amendment, and they do have considerable definitional basis in pre-existing law.

I identify the Constitution more with the Law of the Land, e.g. the existing customs and traditions of the majority of Americans…

Well, that can mean anything… f’rinstance, you have a very personal and adamant notion of what “the existing customs and traditions of the majority of Americans” are — not that any significant number of Americans have appointed you their spokesperson. I have ancestors who fought in the Revolution, and ancestors fresh off the boat in the 1850s and circa 1905. I have a very different sense of tradition than you have enunciated here — which is why we rely on judicial output to resolve such differences.

#4 Comment By Frankllin Evans On January 4, 2016 @ 11:08 pm

KD: my rebuttal to your most recent posts — for which I sincerely thank you — is simple to express. I’m responding to what I see as an omission in your logic, not to your content or citations. You’ve presented a cogent argument.

Your omission is context. I reject your conclusion about the Amendments because they are not abstract applications, they are abstract principles on which jurisprudence is based, not from which it is decided.

In regulatory compliance — and also in contracts, though I don’t remember the details and so must caveat that as suggested — there is a legal concept: arbitrary and capricious. In my now former area of expertise (I am not up to date on the changes since I left it) — employee benefits (ERISA) — this concept was applied objectively as a sort of legal test. It derives from (in my layman’s opinion) the principles of both the 1st and 14th. A benefit — a right to an outcome — is endowed in the individual employee; all employees — equal application and protection from discrimination — have the right, or none of them have it. There is no middle ground under the regulations. Anything in between, be it against an individual employee or a class of employees, will fail the arbitrary and capricious test.

Allow me to repeat: I’m drawing an analogy with this, and while I am certain of the principles involved, I’m certainly neither capable nor prepared to face a challenge on details.

In any event, if you can accept one part of my analogy, you will see my purpose. The decision by an employer to offer and pay for a benefit is akin to an ideological application. The concept of arbitrary and capricious prohibits that decision from being applied in that middle area between the binary end points. It defines a form of objectivity — or neutrality, as Turmarion points out in his thoughts about plurality. The point of the exercise is to permit different ideologies to exist and even be “in charge”, but only to a limited extent under limited circumstances.

KD: So you can never have a fundamental agreement on values unless you have a fundamental agreement on a common culture.

That is so very well put. I submit for your consideration that the preamble to the Constitution was intended to be a starting point for just such an agreement. It failed under what I term the dead weight of religious traditions that were recognized as being the source of conflict. Under a true plurality, no religious institution would strive to impose itself on society. As you also point out, Protestantism has been that tyrant for most of our history.

Re: separate but equal, segregation.

There is in my opinion a clear demarcation line between those two terms. I live in a city with separation. There’s a Chinatown, an Italian Market, enclaves of Greeks, Vietnamese, Jews (and others) from various places in the former Soviet Union, wide areas where African-Americans are in the vast majority, other areas where they are almost entirely absent. As a general (and in some contexts arguable) statement, they are so out of choice. The people who live and work in those places are, within the city, also equal: they have access to the same public transportation, the same city services, the same businesses and shopping districts or malls. There is separation but not segregation. I respectfully request that we leave public education out of this particular point. The wounds from decades of racial segregation are still not fully healed.

The real parallel to theology is not science but law. I’m very glad you articulated that. It is true, and the cause of much grief in many situations.

#5 Comment By KD On January 5, 2016 @ 12:17 am

Secular Misanthropist:

I really should say not “religion” but “politicized religion”. Secularism, secular ideologies, take the phenomenon of politicized religion (Jihad, Crusade, etc.) but strip out the ritual, communal fellowship, art, aesthetics, contemplative practices, etc., leaving only Che and Mao.

Secularism also keeps the connection between political ideals and a legal structure and an educational structure intended to constitute people in the image of the ideal. A kind of communal “theosis” through messianic revolution, however, more pre-Christian in that it is usually a purification achieved through the shedding of human blood. This is where it doesn’t matter if you represent Justice in a statute, and you shed human blood as an offering to Justice, or whether you simply do something like Pol Pot, Stalin or Hitler.

Not all secular people are Messianic, of course, but the more politicized/radicalized the Secular, the more Messianic the faith.

From my perspective, secularism strips away most of what is socially redeeming about religion, and leaves only a bloody parody, rooted in the worst forms of barbarism. Given that secularism is supposedly fighting the “enemy” of “religious barbarism”, it is an irony lost.

Now, there is certain similarities in different human systems of customs and laws, most systems in history have tolerated and/or supported slavery and prostitution for example. But they are all different, variations on a theme.

Because meaning/values are indeterminate, the only way to keep a people together, and preserve a coherent system of laws has been by placing certain customs/values/laws above questioning–that is to say, sacralization (which if you notice, PC is a secular attempt to do). You have your socially recognized cult of martyrs, who stand for certain ideals, which are inculcated into the youth. You obviously have enemies of the ideals, namely, the one’s who killed your martyrs. The sanctity provides a way that the entire system is beyond question. This insures that it perpetuates itself. (You find all these features, which are really elements of cult, in any secular ideology.)

This more or less corresponds to what Scruton talks about a piety, or you could say civic religion. For example, look how Martin Luther King Jr. is treated in American society.

So, secularism, what is it good for? It manages to replicate all the nasty features of religion, without actually taking us to the promised land. For example, Christians have had problems with various groups of non-Christians over the course of history, with some nasty and tragic results. However, secularism just defines a new set of enemies from traditional Christianity, and while the face of the enemy changes, I don’t know that secular humanists are any better at loving their enemies as Christians. I see secularism–as a political ideal–as a cognitive error.

It is like political correctness, just because you change the label, it doesn’t change what the label signifies.

I also probably sound more hard core than I actually am–if you take the contra, it draws a line in the sand. But I don’t really see much in the way of a defense of traditional culture, other than appeals to faith (which is an in-group argument).

#6 Comment By KD On January 5, 2016 @ 12:34 am

Franklin Evans:

I am not trying to say anything pro or con as far as segregation. America is a nation of immigrants, and one of the primary ways America has managed its diversity is through housing segregation. Further, I don’t think there is any good empirical evidence that suggests that America is any less segregated in terms of housing than when Brown came down. So you can be against “segregation” all you want, it is the de facto law of American society today.

The point is segregationists were more than happy to argue “equal protection” means separate but equal. The integrationists said you can’t have separate but equal, and rejected Plessy v. Ferguson, etc. Today, the push for integration is pretty much dead. The “progressive” vision seems to be segregated housing and communities for ethnic minorities, and racial and ethnic set asides for whoever the powerful define as the victim groups. Although the “progressives” haven’t quite repudiated integration, they have pretty much abandoned it since the Burger Court. If it weren’t for the prominence of integration in the civil rights hagiography, I think they would be calling “racial integration” the newest form of “white supremacy”, at least when it is invoked to prevent ethnic minorities from exercising the “right” to segregate.

So is “equal protection” consistent with segregation, integration, or progressive race views (e.g. ethnonationalism and ethnoseparatism for racial minorities)? Answer: It depends on what five judges say it means.

(P.S. I am not against the language of the US Constitution, I just reject the idea–judicial supremacy–that the legislature and the executive branch aren’t equally entitled to interpret what that language means.)

#7 Comment By KD On January 5, 2016 @ 12:39 am

Franklin Evans:

Yes, what anything means is based on context. And context is everything, it determines the difference between a terrorist threat and a joke. You can’t really preserve the meaning of the US Constitution without preserving some level of historic continuity with the culture and values present since the founding. This is not to say the Constitution is not a living document, etc., it has to be, because we aren’t living in 1790, no one was thinking about global warming or gay marriage or drone warfare in the late 18th Century.

#8 Comment By KD On January 5, 2016 @ 12:49 am

You could say one of the short sighted features of Madison, et. al., was that due to the high level of ethnic and cultural homogeneity at the time of the Revolution and the Constitutional Convention, no one gave a lot of thought to cultural identity questions, because everyone was on the same page.

People thought you could just have this merchant Republic, where everyone would get rich (or die trying) and everything could be worked out through compromise. Well, that is all true, but once slavery became sacralized, into a dispute between two competing value systems and two competing social orders, you got blood.

If they had spent more time trying to think through the slavery issue at the Founding, instead of simply trying to get compromises, then maybe they wouldn’t have gotten a Constitution, or maybe they could have avoided a Civil War. I don’t know, except to say that the Civil War proves that the (written) Constitution was really an inadequate foundation, because it ducks the cultural identity questions.

#9 Comment By MH – Secular Misanthropist On January 5, 2016 @ 6:49 am

@chas, MH are my initials and Secular Misanthropist is a twist on secular humanism. Since MH is short and another commenter used it once, I added rotating sayings like “Scientismist” or “Can a misanthrope be a Secular Humanist?” to keep it unique. Turmarion suggested the current one and I stopped the rotation.

I liked it because I have both affection and dislike of the human species, and I suppose myself at times too.

#10 Comment By Scot On January 5, 2016 @ 10:35 am

Justice Scalia, whose decisions parse legal lingo like a 6th grade English teacher (see the tortured logic in Heller), forgets himself when he reads what must be the clearest 10 words in the Constitution:

“Congress shall make no law respecting an establishment of religion.”

Even the English teacher would correct him, noting that it does not say “establishment of a particular religion.”

You see what you want to see, and Scalia sees the law through Catholic lenses, seeking Catholic outcomes. It’s disingenuous for him to interpret it this way. The same goes for others to give him a pass on it.

#11 Comment By MH – Secular Misanthropist On January 5, 2016 @ 11:44 am

@KD, when you use Che, Mao, Pol Pot, Stalin or Hitler as examples of secularism you are cherry picking extreme examples while ignoring large numbers of secular states that don’t work that way. The first four were communists which is an ideology that probably would pass the comparative religions test as a religion.

Most secular states of the democratic capitalism variety are more about muddling through than taking us to the promised land. Moreover if the definition of a successful society is one without internal or external conflict, then all societies are failures.

A better way to look at this is where in the US would you prefer to live? Would you prefer to live in a theocracy like Iran or Saudi Arabia, or the secular West?

#12 Comment By Franklin Evans On January 5, 2016 @ 12:15 pm

KD: I’m with you in principle. Indeed, if we were in lockstep on practicalities as well, this conversation would be boring back-patting. 😀

You’ve clarified for me (at least) very well. Some further items, mostly of agreement…

School districts, probably (haven’t looked it up) since Berger have used the term “desegregation” in place of integration. “Deseg” compliance made it possible for my wife (a teacher) and I to get our children into a better K-8 school than the neighborhood situations could offer. We did our own “busing”, paid extra for before- and after-school care. We could, of course, easily afford it where the vast majority of our neighbors could not.

I avoid detailed critique of the framers of our Constitution. Instead, I try to understand them via on-the-ground reports and correspondence, but specifically a close and somewhat cynical reading of The Federalist Papers. We know some things as facts. The “Bill of Rights” could not be included in the main body of the Constitution, because it simply would not have been ratified. The Federalist Papers were unabashed propaganda, aimed at the citizens of New York urging them to pressure their representatives towards ratification. 20-20 hindsight is a trivializing exercise, in my view and in this context. I had this argument with my youngest while she visited us over the holidays; she is very engaged in social activism in Chicago, and falling into the trap of modern sensibilities projecting onto those white, male land owners of 240 years ago.

Homogeneity is also a trap. It becomes so much a part of the status quo that even a genius can’t get people to see the obvious. Unless we work very hard and don’t hesitate to use violence, our homogeneity is doomed.

#13 Comment By KD On January 5, 2016 @ 6:22 pm

Secular Misanthropist:

I prefer rural to urban, and folk to Tin Pan Alley. I want to live somewhere old men still play checkers on the porch of the country store and where you can still catch live bluegrass concerts.

My problem with American Government is not the Constitution, it is with Judicial Supremacy. Judicial Supremacy was invented by Judges, and is not part of the original Constitution. What the Supreme Court does is essentially decide questions of state or national identity, such as abortion, death penalty, same sex marriage, free speech, school prayer, etc. which are questions for the People (via referendum) or the People’s representatives (Congress) or, better, at the state level by referendum or legislation.

I say national identity, because I think these questions define who we are as a People, and, in a democracy, should be left up to the People. Above I was criticized for throwing a reference to existing custom, but in a referendum, the People decide these questions, and I presume based on their values and their sense of what their country is or ought to be. These questions are simply to important to be left to un-elected bureaucrats.

(Note England has no institution similar to the Supreme Court but functions without despotism.)

#14 Comment By Siarlys Jenkins On January 5, 2016 @ 6:48 pm

Civil War proves that the (written) Constitution was really an inadequate foundation…

With that, truncated from what follows, Thurgood Marshall would agree. He wrote that the constitution was a defective instrument until the thirteenth, fourteenth and fifteenth amendments were added to it.

But the notion that the original thirteen colonies were culturally homogenous is nonsense. They were quite different, and there was a real possibility that they would compete viciously, go to war with each other, become the prey of various European powers patronizing one client state against others, even fight religious wars with each other (as Virginia did when it invaded and more or less ended Catholic Maryland in the late 17th century). The constitution was written to try to bring wildly different states and cultures into a single political framework.

One of George Washington’s persistent worries was that the population settling the trans-Appalachian territories had no ties really binding them to the coastal seaboard, and would go their merry way unless bound by commerce to the original thirteen. That was the impetus for the Potomac canal.

If they had tried to think through the slavery issue at the founding, they probably would not have agreed on a constitution at all — but almost everyone thought the difference would go away in time, as it might have if not for the cotton gin. If one delegate hadn’t been ill at a meeting of the Confederation Congress, slavery might have been restricted to the eastern seaboard.

#15 Comment By Turmarion On January 5, 2016 @ 9:42 pm

I think it would be worthwhile to point everyone to the [6] by Catholic philosopher, translator, and blogger Artur Rosman. He mischaracterizes Rod as a “libertarian”; but aside from that, I think his commentary is a good one. Bonus: Rosman’s post has a comprehensive reading list, too!

[NFR: I quit reading Rosman a while ago. He is often grossly unfair to those he dislikes. — RD]

#16 Comment By Franklin Evans On January 6, 2016 @ 9:43 am

KD: I’m wondering if you are arguing partially from anger. I would respect that fully if you are, having my own pent up store of anger from the last few decades.

However… “judicial supremacy” is epithetical and useless.

The term, as I recall, is judicial oversight. It’s part of the same feedback loop that empowers the President to veto bills that Congress passes, that empowers Congress to override the veto, that gives advice and consent real teeth when Congress must approve presidential appointments. The courts, with the Supreme Court at the apex, forces both Congress and the President to work within the legal frameworks or have their efforts struck down.

There is, to be fair, a subset of judicial actions that were flawed or just wrong. That wrongness might be recognized contemporaneously, but the vast majority of them are shown to be wrong over time… that 20-20 hindsight thing.

But, there is an objective measure to the flaws and wrongness, and it’s not that someone — you, me, a band of evangelical brothers or the supreme leadership of Cult X — decides that they are flawed or wrong.

Emphasis added: What the Supreme Court does is essentially decide questions of state or national identity, such as abortion, death penalty, same sex marriage, free speech, school prayer, etc. which are questions for the People (via referendum) or the People’s representatives (Congress) or, better, at the state level by referendum or legislation.

The questions you listed are precisely what the courts must decide, when hoi polloi, representatives and referenda fail to resolve them. You must, I cannot exaggerate, you must take each issue separately and make that determination on its merits. Jim Crow didn’t exist just in the South, Brown had a nationwide impact and its reaching SCOTUS was a seminal event in our history. Roe was also a seminal event — and I will stipulate its deleterious effects, let’s not get bogged down — but so was Dred Scott.

Finally, there is recourse to any court decision, up to and including amending the Constitution. It’s difficult and painful, but so is the Congressional override, the impeachment process.

We must challenge our authorities. That is what the Preamble requires of us. So long as we do it fitfully, or only when it suits our local or personal interests, your complaint remains valid for a very different reason: The People are the original repository of power in the United States. So long as We continue to elect representatives and executives who have no fear of it, have contempt (let alone lack respect) for it, We are going to continue to get the government we allow, and we have only ourselves to blame for the consequences that harm us.

The whole damn thing is hard, KD. I’ll never apply this to you and your writing, but I am deathly sick and tired of the complaints that would simply go away if those complaining stood up and became The People the founders and framers expected themselves to be.