Saturday, October 11, 2014

The Dangerous Deceptions of Justice Antonin Scalia

by Nomad

sCOTUS Scalia

As a Supreme Court Justice Antonin Scalia has been the most outspoken of all of the judges. His ultra-conservative views are one of the reasons what induced President Reagan to nominate him back in 1986. Increasingly, Scalia's public declarations have become more and more incautious and deceptive. Isn't it time for Scalia to step down?

About week ago, Supreme Court Justice Antonin Scalia made a speech at Colorado Christian University. The speech deserves, I think, a closer look because a few of the things that were said should be a cause for concern.

The speech offered clear indisputable proof of Scalia's misrepresentation of the law, the lack of respect for high court's decision and even the role of the court itself.
Scalia's public pronouncements have, in short, become a serious threat to the authority of the judicial branch.

Fallacy about Secularism

In Colorado, Justice Scalia told his Christian audience:
“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion.
In fact, this is not the secularist position at all. It is not about government favoring religion over non-religion. Secularists may be just as religious as anybody else. Many of them, if not most, are just as religious as the average "Bible-thumper."
So to say this is a debate between the devout and the heathens, believers against non-believers is both insulting and wrong.  

The secularist position is that religion is a personal matter. It belongs in churches or private institutions, but not in the halls of Congress or tax-payer funded schools and other public buildings.

It is simply not possible to represent all religions without making one take priority over any other. Some are even contradictory or otherwise in opposition to others, even within the same religion. There is no state religion and therefore, neutrality between religions is mandated by the Constitution. The government cannot impose any particular religious belief or practice upon its citizens.
Except at a personal level, say the secularists, religion and governance must be distinct from each other. Despite Scalia's remarks, it was never about non-religion.

Justice Scalia is, of course, well aware of these facts but is purposefully misleading the audience. He understands that there are radical religious groups who seek to remove the long-standing separation of Church and State and he is offering them his ideological support.

Scalia went on to say in his Colorado speech that Europe might have a secularist system, but it was not an American idea. In fact, historically speaking, the American government, in its secularist approach to government, was once the country that the Europeans emulated when they looked to reforming their own governments.

Secularism was a revolutionary idea that, some historians say, is the chief reason for the rapid progress of humanity out of the dark ages in which the unchallenged Church ruled all things.

Enlightened thinkers of the Age of Reason- some of the greatest minds of the Modern age such as Denis Diderot, Voltaire, Baruch Spinoza, James Madison, Thomas Jefferson, and Thomas Paine were secularists. They may have believed in God, but they also believed in the wisdom of keeping religion out of government and government out of religion.

The drafters had seen the effects of a state religion in England and France and had reasonably concluded that the new government must avoid the same mistakes. When a government endorses one religion or makes it an official state religion, it opens the doors for gross and often violent intolerance.

Again, Scalia must know this. Yet, to his audience, he remarked
“And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”
There's no need for the American people to enact new statutes. The Constitution spells it out in black and white and past courts have recognized what those limits. 
The Free Exercise Clause and the Establishment clause both come from a single (and seemingly contradictory) passage in the Constitution. 

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

It's not really a contradiction. Congress cannot make laws that promote or prohibit any religion. The government must remain neutral in this regard. Neutrality requires no support of any religion in any form.  However, as the free exercise clause points out, as individuals we are each free to worship, according to our conscience.
Years of legal precedent have solidified this interpretation of the Constitution.

Therefore, the absurdity belongs to Scalia when he claims that the Constitution doesn't require strict neutrality and a separation between government and religion. He might not like it, but there is it.

The American Tradition of God

Playing to his audience's aspirations, Justice Scalia added:
“We do him [God] honor in our pledge of allegiance, in all our public ceremonies, There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise."
Again, Justice Scalia is not telling the truth, or at least, not the whole historical truth.

In fact, when the pledge of allegiance was originally written it had no mention of God. It was a much later addition that originated with the Knights of Columbus, a Catholic organization in 1951. In the days of the Red Scare, the addition of "under God" was a means of distinguishing the American system from the godless Communists in Soviet Russia and Red China. 
So, contrary to Scalia's implication, it is not a long standing tradition. 

There's also another point that Scalia neglected to mention.
Even before the "under God" phrase was added, the pledge of allegiance (along with saluting the flag) had already been challenged in the Supreme Court back in 1940. In fact, it became a constitutional controversy and the source of a Supreme Court humiliation. 
And most surprising of all, perhaps, the challenge to the mandatory pledge of allegiance for schoolchildren was not launched by secularists but by Jehovah's Witnesses.  

The Lesson of the Disobedient Children

Here's the story. 
"During the week of November 4, 1935, a number of schoolchildren in Canonsburg, Pennsylvania, were taken to the school boiler room and whipped for refusal to salute.
As Jehovah's Witness, the children, as instructed by parents, refused to salute the flag because it was a form of idolatry, strictly forbidden by their faith. One source takes up the story:
On November 6, William and Lillian Gobitas refused to salute the flag and were expelled from school at Minersville, Pennsylvania. Their father sued to have his children readmitted. Both the federal district court and the circuit court of appeals decided the case in favor of Jehovah's Witnesses.
Eventually, the case made it all the way up to the Supreme Court as Minersville School District v. Gobitis. The question before the court was whether forcing anybody to saluting the flag  and to say an oath was a violation of their religious liberty.   
The lawyers for the Jehovah's Witness said that the lower court had been correct in their decision against the school district.

However, the high court thought otherwise. It was much less to do, the justices decided, with religion as it did with patriotism and respect for the nation. 
This is no doubt a decision Scalia would have applauded. And it is a perfect illustration of the danger of Scalia's ideas.

Out of the blue, the high court's decision sparked an unexpected reaction. The court's ruling was seen as a dog-whistle to the right-wing Christian and Nationalist extremists began to attack the Jehovah's Witness groups and individuals wherever they could be found.

In the summer of 1940, there were many serious incidents mob violence and intimidation against Jehovah's Witnesses as a result of the court's decision.

Across the nation, from Kennebunkport, Maine to Dallas, Texas, reports came in of fairly vicious attacks. In Wyoming, angry groups brutally beat five Witnesses in one town and in another town, mobs tarred and feathered victims.

Members of the conservative American Legion at Klamath Falls, Oregon harassed Witnesses assembled for worship with demands that they salute the flag and buy war bonds. Following this, the American Legion mob attacked the Witnesses and destroyed their the meeting place, breaking windows, throwing in stink bombs, ammonia and burning kerosene rags.
In West Virginia, Witnesses were forced to drink castor oil and when a reporter asked a local sheriff why this religious minority was being persecuted, he was reported told "They're traitors; the Supreme Court says so. Ain't you heard?"

All in all, nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. First Lady Eleanor Roosevelt actually stepped forward and appealed for tolerance.

All this was happening at the very moment when Nazis in Germany were persecuting Jews because of their "unacceptable religious beliefs". 
*   *   *
These events highlight what can happen when the Supreme Court makes mistakes. Scalia seems intent on repeating the same kind of errors in judgment.

But that's not all of the story.
Only three years later, the Court made another ruling, which in effect reversed its earlier decision.  In West Virginia State Board of Education v. Barnette. the court ruled that tradition and patriotism did not overrule religious freedom, (which includes non-participation)  The decision to recognize- or not to recognize- the symbolic value of the flag and the pledge was not only a matter of religious freedom but of free speech.

According to the court's verdict, public school students were not required to salute a flag- graven image, as they saw it- or to say the pledge. (Remember too that the phrase under God was not even part of that pledge.) 

It was unconstitutional to force them to do so. Chief Justice Robert H. Jackson said:
"Compulsory unification of opinion achieves only the unanimity of the graveyard.”
The idea of secularism in public education was stressed.
Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction. If it is to impose any ideological discipline, however, each party or denomination must seek to control, or, failing that, to weaken, the influence of the educational system.
Judge Jackson went one step further and said:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
In attempting to fix an orthodoxy on the American system, Justice Scalia is contradicting the decisions of past courts. The court has made its position clear that the mixing of religion and government is wrong. Governments cannot encourage the unconstitutional recognition or  an adherence to any particular religious tenet.Even one as seemingly basic as monotheism.
However, according to Justice Scalia,   there is "nothing wrong with that."

Religion without God

In his speech, Scalia carelessly used terms like "religion" and "non-religion" without actually defining the terms. He had a good reason for avoiding that. It would have exposed the shoddiness of his arguments. 

He deliberately neglected to mention that in the past the high court has always taken a very liberal view of the definition of what a religion was.
As his remarks imply, Justice Scalia presumes that a religion must include a deity or some sort. In actual fact, the court has held the idea of a deity was not necessary so long as the system of belief was sincerely held.

This deity issue becomes important when you consider that, according to some state constitutions, protection from religion discrimination is dependent on that religion being deist in nature, having a God to worship. Otherwise, it is not considered a religion and, therefore, receives no First Amendment protections.   

There are religions without deities, like BuddhismHinduismJainism and even a sect of Quakers called Nontheist Friends. All of these are non-theist and none of them would receive protection under those particular state constitutions. The state constitutions have not been challenged at a federal level and would quite likely be considered unconstitutional and unfairly discriminatory.
Scalia's opinion is that there is nothing wrong with adding God's name into official ceremonies. This is not correct according to the constitution.

In this speech, when Scalia tells us there is perfectly appropriate to honor God in public ceremonies, or in official government ceremonies, he is actually running up against the previous positions by the Supreme Court regarding the definition of religion. 
The Supreme Court has interpreted religion to mean a sincere and meaningful belief that occupies in the life of its possessor a place parallel to the place held by God in the lives of other persons. The religion or religious concept need not include belief in the existence of God or a supreme being to be within the scope of the First Amendment.
It might sound like a small issue, God or no God. But it significant for two reasons.
One, the Constitution says it is not government prerogative place one faith above another. Christianity over Islam or even Judaism over Buddhism. The government cannot say that one religion deserves more protection under the First Amendment than any other. In short, there is no officially approved religion in the US.

The second problem is that in refusing to acknowledge the view of the court and its past rulings Scalia is tossing aside those decisions he doesn't agree with. Further, he is encouraging his audience to do the same.

Once you begin deciding what a religion is and a non-religion is, you suddenly naturally fall into the trap of determining which system of belief is more acceptable and which is less acceptable.  
That's something that the Constitution has strictly forbidden.  

Revising Judicial History

If Scalia's remarks had stopped there, his Colorado speech would have been worrying enough. However, Scalia went on to make this rather astounding declaration:
I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution. The biggest danger lies with judges who interpret the Constitution as a malleable document that changes with the times.
In this remark, Scalia contradicts the notion that the Constitution is a living document, and that while the fundamentals remain intact, the judicial interpretation of the Constitution may vary according to the times. 
Want to hear something really astounding? The SCOTUS official website stresses the very idea that Scalia is attempting to discredit:
This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
Continuing, Justice Scalia then delivers his final and his most audacious dishonesty:
“Our [the court‘s] latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and nonreligion. That’s just a lie."
Indeed, it is a lie but it is Scalia's lie. 
A state can choose to defy the constitution, that's true, but eventually, if the state is challenged in federal court, the constitution will prevail. We have seen what happened when states attempted to do that on the same-sex marriage issue. Much time and money were wasted and in the end, the states were forced to admit defeat. 

Scalia's lie has one more surprise in store.

Back in 1994, in the case of  the Board of Education of Kiryas Joel Village School District v. Grumet, the Supreme Court Justice David Souter- (nominated by George H. W. Bush, incidentally) wrote  the opinion for the Court that: "government should not prefer one religion to another, or religion to irreligion."

That is nearly exactly the same phrasing that Scalia used in his speech, mind you.

In support of that 1994 decision, the Souter Court cited a still earlier ruling, Everson v. Board of Education. Souter noted that 1947 ruling declared that  "neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another." 

Completely the opposite from what Scalia has told his Colorado audience.

In fact, there is no way this decision could have slipped Scalia's memory. He was, after all, a member of the high court way back then and wrote a dissenting opinion on the verdict. He didn't agree with the 1994 decision and now he is presenting the official court ruling as wrong.  Actually, he is ignoring the true ruling and replacing it with the opposite. As if he is going back in time and making corrections. 
This is very dangerous territory for a Justice. 

The True Danger

Why is it a danger? It is a threat simply because Justice Scalia is publicly undermining the authority of the court itself. 
By lying about past rulings- in effect overturning what the court has ruled- he has declared that his own interpretation is the official one. It was not. 

As a Supreme Court justice, Scalia must recognize the final verdict of the court. Judges can, of course, dispute the decision of the majority in the dissenting opinion. Publicly respectable judges tended to disagree privately with a high court ruling or they did so after they have left the bench. Justice Scalia must respect the final decision and that he has publicly chosen not to do.

If a Supreme Court justice doesn't respect the court's decisions then why should any citizen?

What Scalia has done goes well beyond the limits of proper judicial behavior for a Supreme Court Justice. When a sitting Justice can, after 20 years, declare that the dissenting opinion is it the law of the land and misrepresent the official decision, then the court's authority itself is under threat.

Justice Antonin Scalia's Colorado latest remarks are conclusive evidence- on top of a long list of other statements and actions- that he no longer recognizes the dictates of the Constitution nor wishes to adhere legal precedents. 

While Scalia sits on the high court, his impartiality- a key element in a credible court- are no longer possible. He has, in short, been compromised ideologically to such a degree that he cannot be trusted to render fair verdicts or recognize those verdicts he doesn't agree with.

Scalia's speech in Colorado should be clear indicator that the man is no longer fit to remain on the high court roster.