During his tenure on the Supreme Court, Antonin Scalia has made no secret of his views on church-state issues. From government-sponsored prayer to public funding of religious schools, he has consistently shown he has little use for the First Amendment's separation of church and state.
Scalia, however, was in rare form in the May 2002 issue of First Things, a conservative Catholic journal about religion in America. In an essay titled, "God's Justice and Ours," Scalia explains why he feels compelled to support the death penalty despite his church's opposition to the practice. One section of the piece was particularly noteworthy because it perfectly captured the logic Scalia uses to justify his utter disregard for government neutrality towards religion.
Scalia was explaining his worldview about how a government acquires moral authority and why the nation-state can permissibly kill its own citizens. He concluded that government is an instrument of God and an institution that operates with "divine authority behind" it. He went on to write that people of faith should fight "as effectively as possible" any effort to "obscure" our government's religious underpinnings.
To be sure, many religious leaders and institutions maintain that the government is an entity used by God to further just causes. If Scalia accepts this view as a devout believer, which he unquestionably is, that is no one's business but his.
The problem, however, is that Scalia is one-ninth of this country's highest judicial body. He has unique responsibilities that demand strict neutrality and objectivity. While Scalia can believe whatever he wants about issues of faith, he may not use religion as the basis for judicial rulings. In short, he swore on the Bible to uphold the Constitution, not the other way around.
As his First Things essay makes clear, Scalia has abandoned any pretense about keeping a healthy distance between the institutions of religion and government. He has consciously and intentionally turned his back on the framework set up by the Founding Fathers, which created a secular government based on a secular Constitution adopted by "we the people." Our laws were not created to enforce a divine authority, but according to the Constitution, to "form a more perfect union."
The First Things article is all the more alarming because President George W. Bush has named Scalia as a model for the ideal justice. In fact, during the 2000 presidential campaign, Bush repeatedly said he would appoint judges such as Scalia to the Supreme Court if given the opportunity.
When a vacancy occurs on the high court, those of us who favor religious liberty must be ready to examine the Bush nominee's church-state views carefully.