Justice Scalia and Religion in the Public Square

I came upon the dissent filed by Justice Scalia in McCreary County vs. ACLU where the Supreme Court found that the intent behind the 10 Commandment display in the county courthouse was relevant to determining if the display itself is unconstitutional.  The Court stated that if the government acts with the predominant purpose to advance religion, that act is unconstitutional.  In a sharp dissent by Justice Scalia, he criticized the Court’s opinion and provided a very clear explanation as why the public acknowledgement of Deity is not only deeply historical but Constitutional.

Here is an excerpt from the transcript of Justice Scalia’s reading of his dissent when the Court announced its opinion.  It is worth reading:

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 the President of the United States gave an address to the nation concerning the murderous attacks upon the twin towers and the pentagon in which almost 3,000 Americans were 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 European country who after extending his profound condolences on 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 the name of the county.”

It is of course absolutely forbidden, he said.

That is one model of the relationship between church and state.

A model spread across Europe by the armies in Napoleon and reflected in the Constitution of France which begins France is a secular republic.

Religion is strictly excluded from the public forum.

That is not and never was the model adapted by America.

George Washington added to the form of presidential oath prescribed by Article II of the Constitution that concluding words “So help me God.”

The Supreme Court under John Marshall opened its sessions with the prayer “God save the United States and this honorable court.”

The First Congress instituted the practice of beginning its legislative sessions with a prayer.

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 of Senate.

The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “A day of public Thanksgiving and Prayer to be observed by acknowledging with grateful hearts the many and signal favors of almighty God.”

President Washington authored the first thanksgiving proclamation shortly thereafter devoting November 26, 1789 on behalf of the American people “to the service of that great and glorious being who is the Beneficent Author of all the good that is, that was, or that will be.”

I could add to these examples many other official and quasi-official indications of the compatibility with the Establishment Clause of expressions of belief in God.

Today’s majority opinion brings forward no official or quasi-official statement expressing what the majority says to be the contrary view, only letters and statements of individual Framers.

Some of which are contradicted by the actions that those Framers themselves took when they were in official office.

There is moreover no indication that America’s views on the official acknowledgment of God today are any different from what they were in 1789.

Presidents continue to conclude the presidential oath with the words, “So help me God” and to wish you thanksgiving proclamations calling for thanks to God.

Our legislatures state and national continue to open their sessions with prayers led by official chaplains.

The sessions of this Court continue to open with the prayer “God save the United States and this honorable Court.”

Invocation of the Almighty by our public figures at all levels of the government remains common place.

Our coinage there is the model “In God we trust” and less than three years ago an active Congress adapted unanimously by the Senate and with only five nays in the House of Representatives criticized a Federal Court opinion that had held the words under “God” in the pledge of allegiance to be unconstitutional.

With all of this reality and much more scarring it in the face how can the court possibly assert as it does in today’s opinion that “the First Amendment mandates governmental neutrality between religion and non-religion”, manifesting a purpose to favor adherence to religion generally is unconstitutional.

Who says so?

Surely not the words of the Constitution, surely not the history and traditions that reflect our society’s constant understanding of those words, surely not even the current sense of American society nothing stands behind the Court’s assertion that governmental affirmation of America’s belief in God is unconstitutional except the Court’s own say so, citing as support only the unsubstantiated say so of earlier courts going back no further than the mid 20th century.

Besides appealing to the demonstratively false principle that the government cannot favor religion over irreligion, today’s opinion suggest that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another.

That is indeed a valid principle where public aid or assistance to religion is concerned or where the free exercise of religion is at issue but it necessarily applies and has always applied in a more limited sense to public acknowledgment of the Creator.

If religion in the public forum had to be entirely non-denominational, 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 the public acknowledgment of religious belief, it is entirely clear from our nation’s historical practices and its practices today that there is a distance between the acknowledgment of a single Creator and the establishment of a religion.

The former is as the court itself said in the case appproving legislator prayers “a tolerable acknowledgment of beliefs widely held among the people of this country.

The three most popular religions in the United States, Christianity, Judaism, and Islam which combined a count for 97.9% of all believers are monotheistic.

All of them moreover, Islam included, believe that the Ten Commandments were given by God to Moses and are divine prescriptions for a virtuous life.

Publicly honoring the Ten Commandments is thus indistinguishable in so far as discrimination against other religious is concerned from publicly honoring God.

Both practices are recognized across such a broad and diverse range of the population that they cannot reasonably be understood as a government endorsement of a particular religious viewpoint.

The Court today fails to recognize that in the context of public acknowledgements of one God or of the Ten Commandments, there are legitimate competing interests.

On the one hand, the interest of a minority, the religious minority and not feeling excluded, but on the other hand, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people and with respect to our national endeavors.

Our national tradition has resolved that conflict in favor of the majority.

It is not for this Court to change a disposition that accounts many Americans think for the phenomenon remarked upon in a quotation attributed to various authors including Bismarck but which I prefer to associate with Charles de Gaulle, “God watches over little children, drunkards, and the United States of America.”

You can listen to the entire speech here:  http://www.oyez.org/cases/2000-2009/2004/2004_03_1693

Lisa @ AmericaisConservative.org