Scalia and the First Amendment: One Nation Under God?

I’ll preface by admitting that I have similar views on religion as Justice Scalia. I believe that regardless of sect, religion promotes a moral society. Values like honesty and generosity are encouraged by most religions. However, similar policy views on religion do not require the same view on the Constitution’s religious clauses.

Readers of “Scalia Speaks” will note a prominent theme in the book: Scalia’s detestation for the Court’s Establishment Clause jurisprudence.

The mainstream interpretation — invoked by the Court in Lemon v. Kurtzman and Lee v. Weisman — proscribe Congress not only to be unable to make laws preferring one religion over another but favoring religion over nonreligion.

Scalia detested this view. He contended a narrow interpretation of the Establishment Clause — one that only prohibits preferences among religious sects. In a 1994 speech given to the Australia Parliament, Scalia argued just that: “It had never been thought that this [the Establishment Clause] prohibited, not merely the official favoring of one religious sect over another, but even a government policy of favoritism toward religious practice in general.”

Following Scalia’s vision would have an insidious effect on our founders’ vision for a “free exercise” nation. Free exercise of religion means not just being able to choose a sect, but being able to believe in atheism or agnosticism. In Lee, Scalia dissented from the Court’s holding that prayers in public school graduations ran contrary to the First Amendment. The prayer was indeed nondenominational. However, that still does not erase the fact that such prayer prejudiced the minority of nonbelievers. In state-sponsored school graduations, the religious were awarded a special benefit. The Bill of Rights’ most jealously protected group (the minority) would be pressured to be present and listen along to the prayers.

The issue at Lee likely is of little policy importance. Even for nonbelievers, listening to prayer does not coerce them to become religious. The prayer was neither frequent nor adamant. However, the real issue is the principle. If religion is to remain free, the issue of religion or nonreligion must lie squarely within the purview of those it affects: we the people.



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William Wang

William Wang

Senior at the Bronx High School of Science. Jotting down my thoughts on the Constitution and the Supreme Court. Always open to be corrected and/or convinced!