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.