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Supreme Court Justice Outlines View on Government and Religion

May 29, 1996
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Supreme Court Justice Antonin Scalia has made clear his desire to lower the wall that separates church and state in this country.

In an address at the Jewish Theological Seminary of the Conservative movement last week, Scalia spoke on “Realism in the Religion Clauses of the Constitution.”

The Constitution’s First Amendment states that “Congress shall make to law establishing religion or prohibiting the free exercise thereof.”

The first part of that amendment is known as the Establishment Clause and the second part is known as the Free Exercise Clause.

Scalia, who has firmly placed himself in the conservative camp of the court, defined himself as a “strict textualist” and made clear his desire to expand government’s endorsement of religious practices, as long as they are, in his view, non-discriminatory.

“The founders desired to encourage religion, not just allow its embrace in a non-discriminatory way,” said the Reagan appointee to the court.

A devout Catholic and father of 10 children, one of whom was recently ordained a Catholic priest, Scalia also said constitutional jurisprudence should rely more heavily on tradition.

“I could do a `Fiddler on the Roof’ bit here: Tradition!” he quipped.

The things that constitute tradition do not evolve, said Scalia. “To say tradition evolves stops the Constitution from doing what it is supposed to do, which is to stop future generations from changing a few things here [and there] which are meant to be static,” he said.

“The framers put in a Bill of Rights because they wanted to prevent change,” he said.

But the way Scalia defined non-discriminatory and non-sectarian was quite different than the way many in the audience of about 150, most of whom were students from the seminary and from a nearby law school, defined it.

The justice dissented from the Supreme Court’s majority in the 1992 case Lee vs. Weisman, in which a Jewish student and her family contested her Rhode Island public high school’s invitation to a member of the clergy to offer a prayer at graduation.

In this case, the clergyman happened to be a rabbi, who at her graduation recited an English translation of the Jewish prayer of thanksgiving known as the “Shehechiyanu.”

The court, in a 5-4 decision, narrowly ruled in favor of the Weisman family.

But Scalia said the prayer qualified as non-sectarian because “it was not a prayer uncongenial to any other religion.”

Although it was a Jewish prayer, “there were no sectarian elements,” he said.

But some took issue with his definition of non-sectarian.

According to Rabbi Neil Gillman, a professor at JTS, “I have problems with the notion of a tradition as he defines it.

“There is more of a tension between modernity and tradition than the justice wants to permit.

“It’s very striking that this position was presented at the seminary, where we struggle with the tension between the claims of tradition and the claims of modernity.”

Scalia has “an incredibly narrow definition of sectarianism,” said Nadine Strossen, president of the American Civil Liberties Union, whose constitutional philosophy is about as different from Scalia’s as any legal expert’s could be.

“To say that a Jewish prayer is non-sectarian is really strange. By his definition, if there had been a religious reading straight from Torah, that would be prohibited, but a paraphrase of the same reading would not,” she said.

“The notion of invoking tradition selectively as he does upholds the tradition that he likes and rejects those he doesn’t,” said Strossen.

Despite the distance between their views, Strossen laughed heartily along with the rest of the audience throughout the speech by the Supreme Court justice, who peppered his presentation with witty asides and self-deprecating remarks.

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