Justice Scalia: “The American people respect religion”

In a historic exclusive interview in Washington, DC, Supreme Court Justice Antonin Scalia candidly shared his views on the interface between religion, morality, law, interpretation of the law and more, with Hamodia’s legal correspondent.

By Y.M. Lichtenstein and T. Moskovits

How has the Supreme Court changed over the years since the early days you’ve been here in 1986?

Obviously the personnel change, but as far as the jurisprudence of the court is concerned, there are two areas of my particular interest in which I think we have made marginal progress.

I do not believe in using legislative history in deciding the meaning of statutes. The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law. In the 1980s you find that the Supreme Court opinion - sometimes 60% of it - was examining the entrails of legislative history. That happens much less than it used to - which I feel is all to the good.

The other cause I am very much committed to is the notion that the Constitution doesn’t change. You need to take account of new phenomena, of course, but as for pre-existing phenomena, if the death penalty was not unconstitutional in 1791 it is not unconstitutional today. It may be a bad idea - in which case you should persuade your fellow citizens to abolish it. But the Constitution does not forbid it. When I first joined the Court, I needed to spend a lot of time researching what the original understanding was, since the lawyers would just quote the last Supreme Court case. There are now two for sure, thoroughgoing originalists on the Court, Clarence Thomas and myself. And I think the Court as a whole has become more receptive to originalism. I think - or perhaps I just hope - that American jurisprudence is moving away from an evolving Constitution to an enduring Constitution.

I have been here for a long time now - 23 years. In that time, I think the Court has become more receptive to the needs of religious practice. We have allowed government practices that favor religion, practices to which, in the 60s and 70s, we were quite hostile. Earlier we weren’t hostile. When I was in elementary school in Queens you were able to get out early on Wednesdays for religious instruction. In the early 1950s the ACLU challenged this as violating the Establishment Clause but William O. Douglas wrote an opinion that said, “We are a religious people whose institutions presuppose a Supreme Being… When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.”

A decade later the Court changed its mind and adopted the so-called principle of neutrality - which states that the government cannot favor religion over non-religion. This is not an accurate representation of what Americans believe. The Court itself has contradicted that principle a number of times - including the case approving tax exemptions for houses of worship (Walz v. Tax Commission) and cases approving paid chaplains in state and federal legislatures. More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.

I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life. 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.

In your opinion, as a practicing Catholic, does the religion of a judge impact his or her decisions and legal opinions?

I hope my religious views do not affect my opinions at all. Other than observing the commandment “thou shalt not lie,” there is no aspect of my religion that plays a role in my judicial opinions. If and when I am placed in the position of having to render a judgment that makes me an instrument of evil, my recourse is not to lie regarding the meaning of the law and come out the other way, but to step down from the bench and perhaps join a revolution. As long as I am wearing my robes and sworn to uphold the Constitution, I try to uphold it as it is written. Fortunately for me, there is nothing in it that contradicts my religion, and my religious belief does not instruct me to impose my personal beliefs on others. With respect to, for example, abortion -personally my religion is against it. But when I sit in judgment on a case I follow what the Constitution and laws require. I do not believe the Constitution requires States to permit abortion; but neither do I believe that it invalidates state laws that permit abortion. Upholding such a state law does not make me a participant in any “evil” - even if it goes against my religion. It is not I who am performing or requiring that abortion; I am simply applying the law which permits a woman to have an abortion if she chooses.

If Roe v. Wade would have come up during your tenure, how would you have voted?

I would have dissented - but not because of my religion. It is a fact that for several hundred years nobody thought that the Constitution forbade restrictions on the termination of fetal life. It is a question of following the Constitution, not my religious predilections.

What role should religion play in American life? Should religion play a greater or lesser role than it occupies today?

When you say more or less, it is actually very different in different parts of the country. If you go to the South, religion is much more prominent in public life, in the North much less so.

I will say this. It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

That is the Napoleonic tradition of Europe, where it is forbidden for the Prime Minister of France or Italy to invoke the deity. I was at a judges’ conference in Rome when the planes went into the Twin Towers on 9/11. That night President Bush gave a speech to the people and he ended it, as American presidents often do, with the words “G-d bless America.” The foreign judges also listened to the speech. The next morning one of them said to me he wished that during a time of national emergency in his country “the leader of my country could invoke G-d.” That is our tradition.

The same Congress that proposed the First Amendment and the Establishment Clause also directed George Washington to proclaim a day of Thanksgiving, and his first Thanksgiving invocation was deeply religious. It was very non-denominational but deeply religious, invoking G-d. And that is our tradition. Some people believe the Napoleonic way - what the French call le laicism and we call secularism - is the right way. If they want, they can get the people to vote for it. But that has never been our way, nor is it in the Constitution.

There is a quote attributed to various people from Bismarck down to Charles de Gaulle. I prefer to attribute it to Charles de Gaulle because it sounds like him.

“G-d protects,” he said, “little children, drunkards and the United States of America.” I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court open its sessions with “G-d save the United States.” Those things are not insignificant.

How do you view the issue of religious institutions receiving government funding? Do you feel they should be receiving more or less government funding?

This issue may come up in front of the Court so I prefer not to comment. My education is partly public and partly private. I attended a public elementary school in Queens and a Catholic high school - I believe there are strengths in both systems. The price of education has gone up and up since I was in school; when I was a kid the Catholic schools were run literally out of donations in the collection basket, which it is impossible to do today.

FOR MORE OF THIS ARTICLE, BUY OR SUBSCRIBE TODAY!