Scalia: Constitution Permits Court to Favor Religion over Non-Religion

I think much of the rest of the court disagrees and I think Scalia is reading too much into into the establishment clause.

Antonin Scalia Says Constitution Permits Court To 'Favor Religion Over Non-Religion'

The separation of church and state doesn’t mean “the government cannot favor religion over non-religion,” Supreme Court Justice Antonin Scalia argued during a speech at Colorado Christian University on Wednesday, according to The Washington Times.

Defending his strict adherence to the plain text of the Constitution, Scalia knocked secular qualms over the role of religion in the public sphere as “utterly absurd,” arguing that the Constitution is only obligated to protect freedom of religion -- not freedom from it.

“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 non-religion,” the Reagan-appointed jurist told the crowd of about 400 people.

“We do Him [God] honor in our pledge of allegiance, in all our public ceremonies,” the conservative Catholic justice continued. “There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution.”

Earlier this year, Scalia joined the Supreme Court’s majority opinion in Town of Greece v. Galloway, which held that the New York town could continue opening legislative sessions with sectarian prayers.

Scalia has since used the case to press for the approval of public prayers in schools, legislatures and courtrooms.

In June, Scalia criticized the Supreme Court for declining to review Elmbrook School District v. John Doe, a case in which the U.S. Court of Appeals for the 7th Circuit ruled that a public school district's decision to conduct graduation ceremonies in a church violated the Establishment Clause.

In a dissent joined by Justice Thomas, Scalia argued that “at a minimum,” the Supreme Court should remand the case for reconsideration, noting that “the First Amendment explicitly favors religion.”

On Wednesday, Scalia also criticized members of the Court who champion a more evolving, “living” view of the Constitution -- a judicial philosophy he has previously said only an “idiot” could believe.

“Our [the Supreme 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,” Scalia said on Wednesday, according to The Washington Times. “That’s just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution.”

If Americans want a more secular political system that guarantees those distinctions, they can “enact that by statute,” Scalia said, “but to say that’s what the Constitution requires is utterly absurd.”

In another public appearance on Wednesday at the University of Colorado Boulder Law School's annual John Paul Stevens lecture, Scalia compared his efforts to restore constitutional originalism to the challenges faced by "Lord of the Rings" protagonist Frodo Baggins.

“It’s a long, uphill fight to get back to original orthodoxy. We have two ‘originalists’ on the Supreme Court,” Scalia said, referencing Associate Supreme Court Justice Clarence Thomas. “That’s something. But I feel like Frodo … We’ll get clobbered in the end, but it’s worth it.”