By ROBYN E. BLUMNER, Times Perspective Columnist
Published July 3, 2005
Justice Antonin Scalia would remake our secular republic into a quasi-theocracy; and with the pending retirement of Justice Sandra Day O'Connor, we may soon have a court that is one step closer to adopting his vision.
In Scalia's America, Buddhists, Hindus, atheists and anyone else not belonging to a monotheistic religion would become potted plants, shunted to the side as marginal citizens. Government would embrace, promote and even possibly fund a belief in the worship of one God.
In McCreary County vs. ACLU of Kentucky, a 5-4 majority of the Supreme Court ordered the removal of the Ten Commandments from courthouses in two Kentucky counties. Scalia, in an apoplectic dissent, made a case for a civil religion. He claimed the founders intended for government to endorse a belief in a single, personal God who is directly engaged in the affairs of men.
"With respect to public acknowledgment of religious belief," Scalia wrote, "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."
As proof, Scalia offered up a litany of occasions when the founders invoked "God" during official business, including Thomas Jefferson's second inaugural address in which he asks for "the favor of that Being in whose hands we are" and James Madison's first inaugural address in which he places his confidence "in the guardianship and guidance of that Almighty Being."
Scalia, a devout Catholic, is distorting the historical record in order to shoehorn his personal faith into civic life. Scalia discounts a singularly important fact: The Constitution, our nation's seminal document, purposely includes no mention of a deity. Religion is mentioned only to guarantee no religious test for public office. The founders at the Constitutional Convention were creating a nation governed by men, based on the ideas of men, and they understood perfectly - having been witness to the centuries of religious conflict in Europe - the danger of government entangling itself in sectarianism.
As to Jefferson, far from injecting religion into his official role, he scrupulously avoided it. He refused to proclaim national days of fasting and thanksgiving as had Adams and Washington before him. And in his famous letter to the Danbury Baptists, Jefferson reassured the group that the Constitution had erected "a wall of separation between church and state."
Madison also wrote often on the need to separate the ecclesiastical and the civil - for the benefit of both realms. In 1822, he said, "religion and government will both exist in greater purity, the less they are mixed together." His 1785 Memorial and Remonstrance Against Religious Assessments stands as one of the greatest exhortations against the use of taxes to support religious teachings.
Scalia's argument is that the founders sought to keep government neutral relative to differing denominations but not between the religious and nonreligious. He approved the display of the Decalogue in the Kentucky courthouses because the Commandments reflect the "Thou-shall-have-no-other-gods-before-me" monotheism of the nation's three most popular religions: Christianity, Judaism and Islam. All three, according to Scalia, believe in the divinity of the Commandments and the same God. (That's a nice gloss to put on historic and bloody divisions on the nature of God.) As to the 7-million Americans who adhere to religions that are not monotheistic, Scalia says tough luck. There should be no government neutrality as to them, because they are so few.
"(W)e do not count heads before enforcing the First Amendment," Justice Sandra Day O'Connor scolded. She reminded Scalia of the oft-repeated principle that the very purpose of the Bill of Rights was to remove certain subjects "beyond the reach of majorities."
Scalia seemed rhetorically unprepared when Justice John Paul Stevens informed him that the Decalogue comes in different forms depending on one's faith. The Kentucky counties chose to display the King James version. But Jews and Catholics have their own. By choosing one form over another, Kentucky was violating the very denominational neutrality that Scalia claimed to support.
His answer to this inconsistency was to punt. "I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not)," Scalia wrote. He then claimed that due to the context of the postings, no viewer could "conceivably" believe that the government was taking religious sides.
Oh, no? Then why didn't the good people of Kentucky choose the Jewish version?
Scalia has looked out upon the nations of the world where the government endorses certain religious ideas and not others - Saudi Arabia, China, Sudan - and decided that the United States should join in. Our national religion should be monotheism, and all those who don't agree should just shut up and thank their lucky stars that they're allowed to stay at all. What a scary, un-American place it would be, living in Scalia's America.