Life often calls out in vain for some levity, a respite from so much that goes horribly wrong. So one might find it a welcome moment when recently Supreme Court Justice Antonin Scalia described himself as a “centrist” on church-state controversies.
In light of Scalia’s lengthy court record, his description of himself as a centrist initially elicits a moment of light-heartedness, maybe a chuckle or two. But there are truly much more honest forums where one can find some levity, such as a Dan Savage column or an episode of “South Park.”
Scalia’s take on himself as a centrist justice, however, is actually more disturbing than it is amusing. Was the justice attempting humor or is he under the delusion that he truly is in the middle on church-state matters?
Since joining the high court in 1986, Scalia has fashioned a record as one of the most hostile justices of all time to the First Amendment principle of church-state separation. The court’s other far-right jurist, Clarence Thomas is right there with Scalia, but hasn’t been on the bench as long.
At a two-day conference on religious freedom in Portland, Ore., Scalia told a largely Roman Catholic audience that in regards to church-state cases he has presided over, “I have been centrist by my own low standards.”
Surely the justice’s comment was in jest.
Even a cursory examination of Scalia’s record reveals his desire to do away with the church-state wall. And later in his speech, Scalia returned to form by knocking the longstanding Supreme Court test to determine when a government action or law violates the separation of church and state.
That test, which emanated from the high court’s 1971 ruling in Lemon v. Kurtzman holds that a law does not violate the separation of church and state as long as the law has a secular purpose, does not have the primary effect of either advancing or inhibiting religion and does not foster an excessive entanglement between government and religion.
Scalia has a long-held animus against the “Lemon Test” and told his audience that the standard deserves its name.
For years, Scalia has complained in his opinions on and off the bench that the high court has used the Lemon Test to improperly shut down government involvement with religion.
In 2003 at a “Religious Freedom Day” event in Fredericksburg, Va., Scalia endorsed symbolic uses of religion by government, such as displaying the Ten Commandments on government grounds, saying that such uses “reflect the true tradition of religious freedom in America….”
At a conference in New York in 2004, Scalia told attendees that America’s reliance on God dates back to the Founding Fathers and pointed to the use of prayer in legislatures, tax exemptions for houses of worship and the use of the phrase “under God” in the Pledge of Allegiance. (The words “under God” were not, however, added to the Pledge until 1954.)
Scalia also fell back on a tired Religious Right canard that the words “separation of church and state” do not appear in the Constitution.
“The Founding Fathers never used the phrase ‘separation of church and state,’” Scalia maintained.
In reality, several Founding Fathers did argue that the First Amendment called for a separation of church and state. James Madison, often called the Father of the Constitution, used the phrase on a number of occasions, as did Thomas Jefferson.
Far from being a moderate on church-state cases, Scalia has proven time and again an extreme foe of the doctrine. His actions on the bench in regards to the First Amendment principle of church-state separation have been flawed, cramped, anachronistic and far from centrist.
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