Supreme Court challenge to Church & State separation?

Justice Antonin Scalia
at the Harvard Law School
  (11/30/06)

One of the great things about the United States is the legal system of checks and balances designed to protect the innocent and render fair judgment. If the system has failed at one level, it may work at another, and so on, "all the way to the Supreme Court," as it is often said.

The United States Supreme Court is, well, supreme in this land, and it too functions under a system of checks and balances so that no one individual should be able to gain undue and unfair influence.

While I do not generally engage in criticism of individuals, I have to say that one of my least favorite Supreme Court Justices during the many years I have been a sentient adult is Antonin Scalia. Justice Scalia may be a very nice man in person, and he may be very bright, but he brings with him some unseemly baggage not appropriate for the bench: To wit, Scalia is a devout Catholic, and in many instances he seems to be attempting to inject his personal faith into American jurisprudence above and beyond what is normal and acceptable. Although I have not studied his record in depth, Scalia has at times struck me as waving around his Catholicism as true, while using his position to be critical of other faiths.

Oddly enough, among the nine current Supreme Court Justices, six are Catholic, one is Protestant and two are Jewish. To my knowledge, no self-declared atheist or freethinker has ever sat on the Supreme Court. Apparently only one Justice, David Davis (d. 1877), has been unaffiliated with a church, temple or other religious organization.

During the Obama inauguration in early 2009, a great fracas burst forth when Chief Justice John Roberts, a Catholic, included at the end of the oath the phrase "so help me God" in the Presidential Oath of Office, dutifully repeated by Obama. In a lawsuit stemming from the act, Roberts's Counselor Jeffrey P. Minnear stated in a signed declaration that he was told the President-Elect (Obama) made the decision himself to insert those four words. If by Justice Roberts, the inclusion could be deemed unconstitutional.

Establishment Clause criticized

Such disputes may be why Scalia has once again stepped into the fray, making pointed commentary about his dislike for the separation of church and state founded upon the "Establishment Clause" in the First Amendment of the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

In an interview with an Orthodox Jewish magazine, Hamodia, Scalia essentially equated the Establishment Clause with "driving God out of public life." It is obvious that Scalia is of an orthodox Abrahamic mindset when it comes to the definition of God. While Abrahamic monotheists insist that God is "omniscient," "omnipresent" and "omnipotent," they also basically believe that this massive cosmic force is in reality a giant man who can somehow be driven out of public life. Imagine—the all-powerful, everwhere-present God of the cosmos so easily tossed out of somewhere, as if he really were a fragile old man sitting on a flimsy throne in an unguarded castle.  Nobody can drive the omnipotent and omnipresent God out of anywhere, so this remark is simply a ludicrous straw man designed to frighten theists of all manner, including Jews, Christians and Muslims, that that's what the Establishment Clause is all about. Next will we hear a rant about how all the American Founding Fathers were in reality Satan-worshipping Freemasons attempting to destroy morality? So much for them all being Christians, as is also argued by the same individuals attempting to "prove" that the U.S. is a "Christian" nation.

In any case, the Establishment Clause—upon which our much welcome church-and-state separation is based in significant part—was designed for one thing and one thing only, and that was not to "drive God out of public life." In reality, this brilliant, short phrase has allowed for human beings to thrive as they have never before, without the fear of a religion being forced upon them, whether or not they are believers in God. In other words, an American citizen may use his or her God-given mind to decide whether or not he or she wants to be a believer, an active practitioner of any kind of religion, faith, sect or cult, or none of the above.

Unlike religious tyrannies full of spiritual terrorism—which are a dime a dozen because they are savage and base—the United States of America values the freedom of the individual doing what he or she wills with his or her own mind, heart, soul and conscience. No other system can produce as much honesty and integrity, as when people are allowed to follow their own paths and moral compasses, within reason and the law.

Directly and indirectly, through such traditions as church-and-state separation, this one clause has encouraged more people to question doctrine and dogma, and to act even more morally because they are using their innate decency, rather than relying on archaic and outdated writings that may cause them to behave inappropriately, such as stoning children for disobeying their parents. (Deut 21:18-21)

This freedom of consciousness and conscience, along with the development of innate honesty, decency and morality, is what the Establishment Clause truly represents, based on what it has ultimately produced over the centuries.

And that is what is great about America, and what must be preserved and protected from all manner of challenges, as part of the important system of checks and balances.

Sources & Further Reading

Justice scalia: “The American people respect religion”
Religious Affiliation of the U.S. Supreme Court
Declaration of Jeffrey P. Minear
A Truly Sacred Scripture