While reading Jack Balkin’s excellent analysis of Scalia’s dissent in McCreary, I noticed something about Scalia’s reasoning that I find disturbing. Take the following passage from his dissenting opinion, for example:
Today’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, 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 just as it permits the disregard of devout atheists…
Balkin picks up on the first part, wherein Scalia argues that nonpreferentialism is a valid principle in cases involving government money, but not in situations involving government endorsement, and he rightly points out the obvious:
Why can’t government support flow only to monotheistic religions? Because that would discriminate among religions, or between religion and non religion? Why then can government engage in such discrimination in its public symbolism? Is it because money is more important than symbols, or because symbols are more important than money?
Quite right. If the principle of non-preferentialism is a valid principle because it avoids discrimination among religions and avoids government entanglement with religion, why does that principle suddenly become invalid when dealing with questions of government endorsement? But I’d like to pick up on something else in Scalia’s reasoning that is, I think, even more important – his casual and slippery statement of the facts in this case. It’s the third and fourth sentences quoted above that draw my attention:
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.
Here Scalia commits the same fallacy committed so often in religious right rhetoric, where they automatically shift from discussing official declarations of belief to discussing “religion in the public square”. But there is a big difference between expressions of religion in the public square and official declarations or official endorsements of religious belief. City parks are often considered public forums, as are public sidewalks, university “quads”, public parks and the like. Religious groups and individuals generally have access to such forums in which to hold meetings, put up displays, hand out literature, and so forth. The primary caveat, of course, is that all religious groups must have equal access to such facilities.
Such public forums are virtually filled with religious speech. Politicians give speeches full of their confessions of faith on public grounds all around the country and no one seeks to stop them. Religious groups hold rallies and prayer sessions around flagpoles at schools and in parks all around the country, and no one seeks to stop them. Churches use public parks for baptism rituals, put up nativity displays, and so forth, all over the country (and again, as long as all religious groups have equal access, they can do so). But there is a major difference between these examples of “religion in the public square” and a display of religious belief that is part of an official governmental policy, as it was in the McCreary case.
Scalia is engaged in a slippery bit of rhetoric here, but his central argument is simply wrong. The notion that preventing the government from ordering displays honoring or endorsing a particular religious viewpoint would mean that “there could be no religion in the public forum at all” is absurd on the face of it. The issue is not what “one” may express, as he put it, in the public square, it is what government may officially declare in the public square. Individuals, including political leaders, are and will remain free to acknowledge God and their religious faith in the public square, as they do literally thousands of times every day around this country. This has precisely nothing to do with the issue in the McCreary case, and Scalia’s pretense that it does is just so much overblown rhetoric.
Furthermore, it’s a dishonest representation of the facts of the case and that’s something that is inexcusable in a Supreme Court justice. If there is a bedrock principle of judicial ethics, at the very least it must demand that you accurately state the facts of the case and not engage in building straw men in the process of ruling.