Justice Antonin Scalia, the religious revanchist appointed by George Bush as part of his pandering to the evangelist right, gave a speech to Orthodox Jews earlier this year in which he supported his bigotry with a steady stream of lies. All quotes in italics are from the story in New York Sun.

Lie the First: …he [Scalia] decried what he saw as the Supreme Court’s prevailing, if recent, jurisprudence that holds that government “cannot favor religion over nonreligion.”

It is pure fantasy to presume that the First Amendment was intended to protect US citizens’ freedom of religion except for atheists and agnostics. The amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” How exactly does Scalia propose that religious thought should have “free exercise” if it is permissible to legislate against atheism and agnosticism?

And why would this stick in Scalia’s craw? Why would he go to such extraordinary lengths to torture the meaning of the First Amendment? The only possible explanation is that he would like to see the US government be granted the constitutional right to discriminate against atheists. And the only reason to hope for the US government to have this right is so that it can use it. (And hold onto that last clause in the Amendment. It’s worth coming back to.)

Lie the Second: “That rule does not, of course, represent the American tradition,” Justice Scalia said.

Contrary to Scalia, that interpretation of the rule was always the intention of the authors of the Constitution. Thomas Jefferson wrote in Notes on Virginia, justifying freedom of religion: “…[I]t does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

What’s more, the principle of religious freedom was established in America more than 120 years before the Constitution was written. In 1657, settlers in the then-Dutch colony of New Netherlands objected to the colony’s establishment of one official religion (the Dutch Reformed Church) and wrote what is known today (rather unfortunately) as the Flushing Remonstrance. What is most admirable about the Flushing Remonstrance is that it was written by settlers complaining about the persecution of Quakers yet not one of the signatories was a Quaker himself.

While the Remonstrance presupposes a belief in God, the main thrust is tolerance for a wide range of beliefs. “Wee desire therefore in this case not to judge least we be judged, neither to condemn least we be condemned, but rather let every man stand or fall to his own Master. Wee are bounde by the law to do good unto all men, especially to those of the household of faith.” So even though the Remonstraters thought they should be “especially” kind to those of faith, they still held that they were bound to do “good unto all men,” not just those of faith, and refused to live by laws telling them to turn away their hospitality.

In short, religious tolerance (including tolerance of non-religion) and separation of church and state are long-established principles of American society and are not, as Scalia would have it, some modern invention of anti-religious agitators.

Lie the Third: …[R]ecalling President Bush’s valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: “God bless America.” Such a statement, Justice Scalia said, would be “absolutely forbidden” in many countries in Europe.

Would Scalia care to mention a single European country in which this statement would be forbidden? I can not think of a single one. The national anthem of the United Kingdom is “God Save the Queen” and 26 of the 732 seats in the House of Lords are reserved for the “Lords Spiritual”, that is, Anglican priests who are unelected. In Germany, Austria, Denmark, Finland, and Sweden, citizens who identify themselves as religious can have the government tax office distributes tithes known as the Church Tax to their chosen church, a process that provides the majority of church revenues in those countries. In Spain, the Catholic Church owns and runs radio stations and actively campaigns for the right-wing Partido Popular party. Even in France, the most vociferously secular nation in Europe, the current President has urged a more active role for religion in public life. In short, the idea that Europe is in the grip of an anti-religious straitjacket is a pure concoction of Scalia’s.

Lie the Fourth: Noting that Islam, Judaism, and Christianity all believe that the Ten Commandments were given by God, Justice Scalia had written that displaying the Ten Commandments in a courthouse “cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”

If Scalia had an ounce of honest thought in him, he would recognise that this argument is utterly untenable. Just because some religious groups share certain beliefs does not mean that supporting those beliefs is not the promotion of religion. The Ten Commandments are a particular religious viewpoint. It is also true that all Christian churches share a belief in the divinity of Jesus Christ. So, presumably, if the US government was to pass laws in favour of this belief, it would not in Scalia’s view be a violation of the First Amendment. And if the US government was to pass laws supporting Protestantism over Catholicism (much to Scalia’s Catholic dismay), then presumably this would still be all right as there are several Protestant denominations. It is incredible to me that a man of even the faintest intellect could fail to see the flaw in this argument. Adopting Scalia’s argument would make the First Amendment completely meaningless. All a legislator would have to do is find two religious groups who share an opinion on one matter of doctrine to bypass the Establishment Clause.

(As an aside, it always puzzled me that the courtrooms that created a Constitutional crisis by putting up the Ten Commandments were located in Alabama, Kentucky, and Texas. Since the death penalty was reintroduced in 1974, Texas alone has executed 405 convicts and George W. Bush himself presided over an unprecedented 152 in his six years as governor. Why is it, I wonder, that the judges and politicians who are most ardently in favour of displaying the Ten Commandments in courthouses do not themselves feel bound by the Sixth?)

Lie the Fifth: In a decision last year, Justice Scalia and Justice Thomas called on the court to overturn a precedent that allows any taxpayer to go to court to challenge a government program that is alleged to promote religion.

Scalia has argued long and forcefully against interpreting the Constitution as “living document.” To Scalia, the way to interpret the Constitution is not through the light of modern understanding but in the literal meaning of the words in the document. This is known as “textualism.” Scalia is adamant that the Constitution should be interpreted as plainly as the original authors wrote it. But then he abandons this principle on the flimsiest of pretences whenever it doesn’t match his political views. As the quote above demonstrates, Scalia as a Supreme Court justice has openly discouraged First Amendment cases and even went so far as to pass a judgement to the effect that a private citizen or citizen’s group cannot bring a First Amendment complaint against the government before a court. Look again at the First Amendment: “Congress shall make no law respecting…the right of the people…to petition the Government for a redress of grievances.” And yet, here we have the man who describes himself as the defender of the original Constitutional passing a judgement that the US could simply legislate away the right of the people to sue the government. So much for the redress of grievances.

And my favourite: arguing that torture did not violate the Eighth Amendment. What is the Eighth Amendment? “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” And in what universe was torture not “cruel and unusual punishment”? In Scalia’s deranged universe. He actually claimed in a 60 Minutes interview that torture was not against the Eighth Amendment on the grounds that a policeman torturing a suspect is not punishing him but trying to get information out of him. Two different things, you see, and the Eighth Amendment does not mention cruel and unusual interrogation,– or cruel and unusual entertainment for that matter. In Scalia’s world, torturing prisoners for fun would be constitutional just so long as the torture wasn’t meted out as part of the sentence. It amazes me that Scalia can look at a phrase like “cruel and unusual punishment” and think that the critical point the Constitutional authors wanted to make hinged on a hair-splitting definition of “punishment” and had nought to do with the “cruel and unusual.” But then, perhaps he recognises his circle of friends in that phrase and wouldn’t want to rule agin it. So much for textualism.

Tags: atheism, constitution, justice antonin scalia, religion