Thursday, July 07, 2005


I am indebted to Robin Blumner, the St.Petersburg Times Perspective Columnist, for her incisive treatment of the recent "Ten Commandments" decisions by the United States Supreme Court. There is a quote in her piece that I just had to look up for its context. It is one of the most alarming public statements of this or any year, a strange bit of radical rightwing rhetoric designed, it seems, to fashion a theocracy out of the bruised remains of our American republic—our American representative democracy.

The Supreme Court has been a mystery to most of us. Its legal opinions are typically abstruse, scholarly affairs, designed by highly motivated law clerks after months of research under the guidance of the justices, sprinkled with Latin terms, and on the whole opaque. The court decides to hear a case and will entertain oral and written arguments. Along the way one or more of the justices will tip his or her hand as to how they will vote, and through a process that is not entirely clear to me one will write an opinion that becomes the majority opinion. Another justice on the other side will write a dissenting opinion. There maybe some coaching along the way from the others on each of these opinions, but in the end each will have attached his name to one or the other of them, or parts of one of them, or if a justice believes he or she has something else to say about it that the authoring justice did not include, they may write their own "concurring" opinion, stating their differing reasons.

The majority opinion, called "The Opinion," and the concurring opinions have a major impact, for within them lie the premises and principles upon which law is to be understood. In the case of dissenting opinions it is less clear, but whatever is stated in a dissenting opinion is a matter of the record, right or wrong, and represents that minority number of votes in the case. In a system like ours which respects "precedent law," these dissenting opinions may become majority opinion as the composition of the court changes. For this reason, which will become clearer later, it is important that dissenting opinions be rational and, in their own way, consistent with the Constitution.

One of the recent "Ten Commandments" cases was McCreary County vs. ACLU of Kentucky in which the ACLU asked the court to declare the installation in two Kentucky courthouses of a version of the Ten Commandments in violation of the the "establishment clause" of the First Amendment to the United States Constitution. The majority of the Court found in favor of the ACLU and ordered the exhibitions of the Ten Commandments removed.

Justice Souter wrote the The Opinion on this case. The case is not completely straightforward because the exhibit changed over time in response to protests, but Souter and four others found that there was no evidence of a secular purpose to the displays, rather that the use of these religious texts overtly and deliberately advertized that Kentucky law was based on these religious texts, and offered the inference perhaps, that those who followed these commandments would get better treatment in these courthouses. This was a clear violation of the "establishment clause."

Justice Antonine Scalia predictably dissented. Chief Justice Rehnquist and Justice Clarence Thomas joined in his dissenting opinion, while the fourth Justice, Kennedy, joined only in parts II and III of Scalia's written opinion. It is the Scalia dissent that is the subject of today's essay. You can read the whole dissenting opinion here.

Justice Scalia ... and his clerks ... are not the wick in the national lantern; neither do they fuel the light. They are notoriously bad logicians, and their arguments reek of emotion and hubris. For instance in the current dissent they write after listing a series of personal actions taken by George Washington, James Madison, and others:

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante, at 12, 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.

Scalia and his friends seem not to know the difference between personal and idiosyncratic actions and the action of government. They also seem not to know the difference between a person and his office, in other words. Worse yet, they assert with a backhanded remark, even though the very words of the First Amendment "establishment clause" are staring them in the face, that government is not supposed to be neutral between religion and non-religion! Why do they not understand that the First Amendments says that government must remain outside the discussion entirely? Do they not understand that our government was created specifically because of the former government interfering and expressing the full weight of its power on issues of conscience?

No one doubts that there are religious people in America and that there always have been, and that each of these would like the best treatment possible from society in general to protect their personal decision to believe. The Constitution recognizes religion by its considered and definite stricture to stay out of religion, that is, to remain aloof and separate, to abstain from "establishing" or supporting or advertizing or promoting any religion, not just Scalia's Roman Catholicism, but also Tom Cruise's Scientology and Mitt Romney's Latter Day Saints. And, it says that government shall make no law restricting the free exercise of religion. That means, literally, NO LAW for or against any religion—ANY—since rewarding one religion would always mean disparaging another! Nothing! Complete neutrality, which logically includes non-religion as well, if "non-religion" (or "irreligion") is defined as one of those personal decisions of conscience to abstain from religion. Government has no business (... and it is unconstitutional ...) promoting any religion or religion in general.

If this is not a requirement of silent neutrality by the government, then words have lost all meaning. It can be nothing else. But, of course, Scalia would say the opposite. He says that history trumps the Constitution and that the vast religious heritage of America is the justification for government to involve itself in religion! He cherry-picks the historical record fully ignoring millions of instances where religious and non-religious Americans remained secular and devoid of religious enthusiasm. Scalia's "historical logic" is very dangerous nonsense and brings us to the quotation found in the opinion piece by Robin Blumner. To give context, the entire paragraph is reproduced with the quoted part underlined.

Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. See ante, at 19; see also Van Orden, ante, at 11—13 (Stevens, J., dissenting). That is indeed a valid principle where public aid or assistance to religion is concerned, see Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002), or where the free exercise of religion is at issue, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532—533 (1993); id., at 557—558 (Scalia, J., concurring in part and concurring in judgment), but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, 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 public acknowledgment of religious belief, 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. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational–but it was monotheistic. 3 In Marsh v. Chambers, supra, we said that the fact the particular prayers offered in the Nebraska Legislature were “in the Judeo-Christian tradition,” id., at 793, posed no additional problem, because “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,” id., at 794—795.

Scalia has stepped out of rationality and over the "good behavior" line at this point. It is by no means "clear" from our historical practices (or any other body of data applied to inductive reasoning) that we citizens or, especially, our government may disregard polytheists, or deists whose understanding is that deity is unconcerned with human behavior, or for that matter agnostics and atheists.

There is no argument presented, only the catch phrase "it is entirely clear ..." which every schoolboy knows is the the refuge of scoundrels and snake-oil salesmen. It is, on a moment's reflection, an outrageous statement, one which cannot be left in the public record unnoticed until Scalia and the Christian right decide to institute, piecemeal or otherwise, a theocracy in America.

No one in the federal government or any other level of government has any business declaring one set of metaphysical principles superior to any other for any reason. By their very nature metaphysics are beyond and separate from government. Roman Catholics and most Protestant Christians believe in a trinitarian deity—One yet Three—not exactly polytheism, but so vanishingly close to it that serious debaters might argue forever about it. Atheists are convinced and strongly hold their opinions (and base them on tangible evidence, btw) but they are not "devout." That is sleezy projectionism by Scalia and his staff.

No, Scalia is not just wrong in his dissent, he is completely outside the American Constitution in his rant for theocracy, for government involvement in religion. His public and official words are an atrocity against the Constitution and the sensibilities of Americans everywhere. His logic is so contorted, his understanding of American history so shallow, his discrimination between people and offices, between personal acts and acts of government so inept, that I believe he is in breach of the requirement that "judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,...." To put it so clearly that even he might understand it: with opinions like this, Scalia should be removed from the bench.

James Richard Brett