Dark Bilious Vapors

Via Brian Leiter, we get a pointer to an interesting discussion of Justice Scalia's dissent in McCreary County v. ACLU by Jack Balkin, professor of law at Yale. Scary stuff:

In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion-- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot. Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment!

Even so, it is refreshing to have Justice Scalia put his cards on the table [note: "ed." here highlights Prof. Balkin's comments --LRC]:

[T]oday's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, [ed.-- Why?] or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgement of the Creator. If religion in the public square 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 [does he mean, Deists, like many of the Framers?-- ed.] just as it permits the disregard of devout atheists
. . .
[T]here is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, "a tolerable acknowledgement of beliefs widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism and Islam-- which combined account for 97.7% of all believers [do all of the 97.7% believe in a personal God who intervenes in the affairs of mankind?-- ed.]-- are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life [Again, do all of the 97.7% actually believe that the Ten Commandments are the actual word of God actually given to Moses on Mount Sinai? What happened to liberal Protestantism and Reform Judaism?-- ed.] Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. [Except, of course, if you are a Christian, Jew or Muslim who doesn't believe in the Bible literally and who may actually be opposed to sects with such views, in which case the government is taking sides in a theological dispute within the various monotheistic religions-- ed.] Both practices are recognized across such a broad and diverse range of the population-- from Christians to Muslims-- that they cannot reasonably be understood as a government endorsement of a religious viewpoint [unless, of course you look at the actual views and theological disputes among Christians, Jews, and Muslims, which Scalia doesn't bother to do-- ed.]

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

Prof.

You are absolutely right about the historical nonsense of a "Judeo-Christian-Islamic" culture.

Back during the time of the Founding there were roughly two schools of thought regarding how to understand religious rights (actually it's more nuanced than this -- more variation, but permit me to simplify).

One school that wanted to give rights only to the different "Protestant" sects of Christianity (not to Jews or Catholics or Muslims).

And the other that would apply rights universally, not only to Jews, Catholics, and Muslims, but to Hindoos, Pagans, and Infidels of every denomination. In other words, Jews and Catholics tended to take their rights with the heretics, atheists, and polytheists.

Len on 06.28.05 @ 08:44 AM CST