Scalia Escalates Attacks On Church-State Separa­tion At New York Conference

America’s Founding Fathers did not use the phrase “separation of church and state” and intended for religion to always play a role in government, Supreme Court Justice Antonin Scalia told a New York City audience in late November.

Speaking at a conference on religious freedom at Shearith Israel Synagogue in Manhattan, Scalia criticized the idea of government remaining neutral toward religion, saying that was never what the founders intended. Instead, he insisted, they merely supported even-handed treatment among religious denominations.

“The Founding Fathers never used the phrase ‘separation of church and state,’” Scalia said. He argued that a rigid division between the institutions has done nothing to make Jews safer.

“Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America?” he asked. “I don’t think so.”

To further his claim, Scalia pointed to a few examples of official religiosity in America: the word “God” on U.S. currency; chaplains of various faiths in the military and the legislature; real estate tax exemption for houses of worship and the phrase “under God” in the Pledge of Allegiance.

Many listeners at the event took this to mean that Scalia was blaming the Holocaust on church-state separation. If this is indeed what he believes, critics pointed out that Scalia needs a history lesson.

The massive work The Rise and Fall of the Third Reich: A History of Nazi Germany by William L. Shirer details the way Adolf Hitler and the Nazi Party used churches to their own ends.

As the book notes, Nazi Germany was no bastion of church-state separation. In fact, Hitler sought to use the state to dominate the church. By decree, Hitler merged the German Protestant Church into the Reich and claimed the legal authority to appoint priests with the state. Hitler appointed Ludwig Muller, a Lutheran pastor, as Reich Bishop of the new state church.

The Nazis guaranteed state funding for the official Protestant church and at the same time made overtures to the Catholic hierarchy, which led to the signing of a concordat between the Vatican and the government. Pope Pius XII went so far as to arrange for special greetings to Hitler on his birthday. A famous photo from this time shows two Catholic bishops giving the Nazi salute. Nazi soldiers wore belt buckles inscribed “Gott mit Uns” (“God with Us”).

Critics also challenged Scalia’s assertion that the founders never used the phrase “separation of church and state.” In fact, they noted, James Madison, the father of the Constitution and one of the authors of the Bill of Rights, used the phrase on several occasions, as did Thomas Jefferson.

Scalia’s comments drew a sharp rebuke from Thom Hartman, author of the book What Would Jefferson Do?: A Return to Democracy. Writing on the website, Hart­man observed, “In some distant place, Adolf Hitler and Bishop Muller must be smiling at Scalia’s encouragement of the growing conflation of church and state in America. It’s exactly what they worked so hard to achieve, and what helped make their horrors possible.”