Scalia Knocks Church-State Separation in Jewish Newspaper

September 21, 2009

He's at it again.  In a recent, exclusive interview in the Jewish newspaper Hamodia, Supreme Court Justice Antonin Scalia spoke extensively about his views on religion and government.  He used this opportunity to take a swipe at "the so-called principle of neutrality - which states that the government cannot favor religion over non-religion."  He further remarked that he is "not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life."

Scalia also extolled the virtues of the Court's 2007 decision in Hein v. Freedom From Religion Foundation , in which a 5-4 majority stripped American taxpayers of their right to challenge the executive branch's use of tax dollars to promote sectarian religion, effectively giving the President a blank check to violate the Establishment Clause:

We had a monumental decision last term involving the Establishment Clause, which has been the principal instrument to that end. During the Kennedy administration, Congress passed a bill that gave federal aid to public and private schools. It was challenged by the ACLU, and the Supreme Court ultimately disallowed the aid to private schools. The case that allowed that suit to proceed, Flast v. Cohen , reversed a long-standing principle of law that there was no standing to challenge a law simply because you are a taxpayer. Flast v. Cohen says a taxpayer who is not personally affected has standing to challenge an alleged violation of the Establishment Clause. Last term we limited that holding to suits challenging congressional action. To challenge executive action on Establishment Clause grounds you must be personally affected.

Scalia's remarks on religion have landed him in hot water before.  In a 2002 speech to the graduating class of the University of Chicago Divinity School, he sang the praises of the divine right of kings and the Christian belief that government derives its authority not from "We the People," but from God:

Few doubted the morality of the death penalty in the age that believed in the divine right of kings. . . . [T]he core of [St. Paul's] message is that government - however you want to limit that concept- derives its moral authority from God. . . . The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.

This is an assertion Scalia later repeated during oral argument in Van Orden v. Perry , when he stated that the Ten Commandments are "a symbol of the fact that government derives its authority from God."

If history is any guide, Scalia will have more to say about God and government during the Court's oral argument in Salazar v. Buono this October 7.  (Click here for CFI's amicus brief in the case.)  Stay tuned for more.


#1 J. (Guest) on Monday September 21, 2009 at 12:10pm

We’re indebted to Justice Scalia for irrefutably proving that the founding fathers were wrong and Bin Laden is right. Time for all good Americans, “people of faith” to take back America. Where is Jimmy Swaggert now that we need him?

#2 Arthur Urrows (Guest) on Tuesday September 22, 2009 at 9:20am

Derek, this is more a personal message than your excellent comment on Scalia.  Where is Austin Dacey and do you know his e-mail address?

I din’t see your name lister on CHI’s personnel list.

Arthur Urrows

#3 liberalartist on Tuesday September 22, 2009 at 9:42am

So basically Scalia doesn’t like democracy - where the authority of government is given by voters and can be taken back at the next election. He prefers theocracy, like Iran, where the rules are decided by the religiously “chosen”.

#4 Ben (Guest) on Tuesday September 22, 2009 at 9:46am

He has a point though. Despite what the Constitution says the government has rarely been neutral on the subject. Why start now?

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