Ken Mehlman, the newly elected chairman of the Republican National Committee, knew just what his Religious Right audience wanted to hear.
Standing in a packed ballroom at Washington’s glitzy Ritz-Carlton Hotel Jan. 19, the former chief of President George W. Bush’s re-election campaign told a collection of far-right religious activists that changes are coming – starting at the top with the U.S. Supreme Court.
“Promises made will be promises kept,” Mehlman said. As the Los Angeles Times reported, he went on to call the appointment of judges a president’s “most sacred duty.”
Concluded Mehlman, “We’re going to have more Scalias and Thomases.”
The crowd of 800 at the “Christian Inaugural Gala,” an unofficial inaugural event sponsored by the Traditional Values Coalition (TVC) and a phalanx of other Religious Right organizations, liked what they were hearing. The thought of more justices like Antonin Scalia and Clarence Thomas, the high court’s most dogged opponents of separation of church and state, made some positively giddy.
“We don’t believe in cloning, but if we did, we would clone Scalia and Thomas,” gushed Andrea Lafferty, TVC executive director.
Mehlman’s words might have been music to Lafferty’s ears, but to defenders of church-state separation, the GOP official definitely struck a sour note. Mehlman’s promise was clear evidence that the Bush administration is determined to remake the Supreme Court in a rigidly right-wing mode. The final result could be a full-scale judicial assault on the church-state wall.
What would a court stacked with Scalia and Thomas clones do to the wall of separation?
To answer that question, one need only look at the opinions the two have penned. Since joining the high court in 1986, Scalia has been a consistent foe of church-state separation in every case. Ditto for Thomas, who was confirmed in 1991.
A court remade in the Scalia/Thomas mode would permit public schools to teach creationism alongside evolution and give its blessing to other forms of government-sponsored religion in the classroom. Government would not only be allowed, but required, to fund religious schools and other sectarian enterprises in certain cases. Government officials could festoon courthouses and other public buildings with religious symbols.
At the same time, Scalia’s vision of religious freedom – the “free exercise of religion” promised in the First Amendment – is already holding sway at the high court, and even many conservatives say it’s a cramped and narrow view that unfairly singles out minority faiths and makes them vulnerable to government control.
Scalia calls himself an “originalist.” In his view, the Constitution is a set-in-stone document that – very conveniently – reflects his ultra-conservative opinions. When attempting to decide controversies over religion, the high court should be guided by his constricted take on the Founders’ intent.
Speaking recently in Ann Arbor, Mich., at a forum sponsored by Ave Maria School of Law, an ultra-traditionalist Roman Catholic institution founded by Domino’s Pizza founder Thomas Monaghan, Scalia dismissed the idea that the Constitution is able to adapt to changes in American culture.
“The Constitution says what it says and does not say what it does not say,” he told the crowd. The Associated Press reported that Scalia went on to insist that “tradition and historical practice is stronger” than tests devised by the Supreme Court to determine church-state violations.
In a late November speech, Scalia was even more aggressive.
“The Founding Fathers never used the phrase ‘separation of church and state,’” Scalia told attendees at a conference at Shearith Israel Synagogue. He went so far as to assert that the separation principle failed to protect European Jews during World War II. (See “Scalia Escalates Attacks On Church-State Separation At New York Conference,” January 2005 Church & State.)
Scalia is also fond of giving a speech to conservative religious groups during which he brags that he is a “fool for Christ” and heaps scorn of those who dare to adopt a worldly-wise skepticism of the claims of traditional Christianity.
“To believe in traditional Christianity is something else,” Scalia told a Knights of Columbus audience in Baton Rogue, La., in January. “For the son of God to be born of a virgin? I mean, really. To believe that he rose from the dead and bodily ascended into heaven? How utterly ridiculous. To believe in miracles or that those who obey God will rise from the dead and those who do not will burn in Hell?”
Continued Scalia, “God assumed from the beginning that the wise of the world would view Christians as fools…and he has not been disappointed.”
Scalia’s outspokenness on his personal religious views is nothing new. In fact, it goes hand in hand with his ultra-conservative judicial philosophy. Once seated on the high court, Scalia wasted no time making his hard-line anti-separationist views known. During the court’s 1986-87 term, the justices heard a case challenging a Louisiana law requiring public schools to offer “balanced treatment” between biblical creationism and evolution, giving the combative newcomer an early opportunity to sound off.
The court struck down the law by a 7-2 vote, with Scalia in the minority.
Blasting a “theme of chaos” that Scalia said ran through the high court’s church-state cases, the justice asserted that if a majority of Louisiana residents wanted creationism in the classroom, they should be allowed to have it. The idea, he insisted, was not necessarily religious.
“The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools….” he wrote.
Since then, Scalia has voted against separation of church and state in numerous cases to come before the court.
In 1992, he voted in favor of allowing a Rhode Island public school to sponsor religious activity during graduation exercises. A few years after that, Scalia voted in favor of permitting a Texas public school to broadcast prayers before football games. In both cases, the majority ruled that school officials cannot promote religion.
The ’92 case really got Scalia worked up. His dissent was long and bitter, and he read it all aloud from the bench.
Scalia accused the court of going on a “psycho-journey” and insisted that a nondenominational prayer during a school graduation is not coercive. He called such official worship a “unifying mechanism” and said he saw no reason to “spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation.”
Two years later, Scalia insisted that a New York law creating a special “public” school for the exclusive use of members of an ultra-orthodox Hasidic group was not a violation of church-state separation. Reaching for the most lurid hyperbole possible, Scalia asserted that the ruling, was “unprecedented” and had the effect of being “a repealer of our Nation’s tradition of religious toleration.”
He has repeatedly voted in favor of government aid to religious schools and institutions and played a crucial role in a series of decisions undermining church-state rulings from the 1970s and ’80s that declared taxpayer assistance to religious schools unconstitutional. Scalia’s push to win approval for this type of aid culminated in a 2002 ruling upholding Ohio’s voucher plan, even though the vast majority of the money subsidized Roman Catholic schools.
Two years after that, Scalia tried to expand that ruling and issued a dissent in Locke v. Davey stating that, under certain conditions, states may actually be required to fund religious education. His opinion was so radical that even Rehnquist, a frequent Scalia ally, blanched. Rehnquist ended up writing the majority opinion, making it clear that while scholarship aid to divinity students may be permissible under the First Amendment, it is not required.
Scalia has also backed the symbolic union of church and state. Claims that government-sponsored religious displays violate the rights of religious minorities and non-believers fail to impress him. He has been a staunch supporter of such displays since day one.
Historically, justices occasionally toss the nation a curve. Former Justice Byron White was generally no friend of church-state separation, but in the 1987 creation-science case, even he found Louisiana’s argument too much to bear and sided with the majority. Justice Anthony M. Kennedy, who started out as a critic of church-state separation, has softened a bit over the years on a few issues and provided the crucial fifth vote in the 1992 school prayer case.
There are no surprises with Scalia. Since taking his seat, he has ruled against the separation of church and state in every case dealing with challenges to laws “respecting an establishment of religion.”
Scalia rejects the entire foundation of modern church-state law: that laws respecting an establishment means more than simply declaring an official national church. His view of the First Amendment’s religion clauses is extremely narrow. Critics say that under Scalia’s view, communities could quickly have a de facto established religion of whatever the majority chose.
What’s worse, critics say, Scalia’s opinions, especially his dissents, are frequently mean-spirited and dripping with sarcasm. His opponents on the high court aren’t just wrong, they must be stupid as well or perhaps hostile to religion.
Even more shockingly, Scalia has not limited his judicial assault to the “establishment” part of church-state separation. The wall also protects every Americans’ right to the “free exercise” of religion. Here, Scalia’s record has also been a disaster.
In 1990, Scalia cobbled together a court majority that basically eviscerated the very core of the First Amendment’s religious freedom protections. With the stroke of a pen, Scalia, who wrote the majority opinion in Employment Division v. Smith, wiped more than three decades of settled law off the books.
In its place, Scalia substituted a crabbed and narrow vision of religious freedom rights that critics say all but guarantees that when the rights of the believer and the perceived needs of the government come into conflict, the state always wins.
Scalia acknowledged that his new formula would put religious minorities at a disadvantage but essentially said that is too bad.
“It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs,” wrote Scalia.
The court’s action was such a shock that a diverse coalition of religious and public policy groups pulled together to promote the passage of federal legislation to restore the standards Scalia tossed out.
The coalition was incredibly diverse and included groups that promote church-state separation as well as their ideological counterparts on the right. (Americans United was a member.) The legislation, the Religious Freedom Restoration Act, was signed into law by President Bill Clinton in 1993 – and promptly struck down by the high court in 1997.
Congress tried again, this time passing a different version of the law. That measure, the Religious Land Use and Institutionalized Persons Act, is now facing a test at the Supreme Court, which will decide its fate this term.
Religious Right organizations claim to be strong supporters of religious freedom. While many of them joined the coalition that passed the Religious Freedom Restoration Act and its successor, most still continue to laud Scalia as a hero, choosing to overlook his dismal views on religious liberty.
Even though he rolled back free exercise rights, Scalia sides with the Religious Right on a host of other social issues.
Outspokenly anti-abortion, Scalia has repeatedly voted against reproductive freedom. In Scalia’s view, Roe v. Wade, the landmark 1973 high court ruling that legalized abortion nationwide, was wrongly decided. He believes it should be overturned at the nearest opportunity.
In 1989’s Webster v. Reproductive Health Services, Scalia voiced his displeasure with court rulings that merely chipped away at legal abortion. It would be better, he wrote in a concurring opinion, to scrap the entire Roe decision.
“It thus appears that the mansion of constitutionalized abortion-law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never brought entirely down, no matter how wrong it may be,” he wrote.
Scalia has also voted to uphold the anti-gay laws beloved by the Religious Right. He penned angry dissents in 1996’s Evans v. Romer, which struck down a wide-ranging anti-gay state constitutional amendment in Colorado, and in Lawrence v. Texas, a 2003 ruling that voided state laws criminalizing consensual homosexual acts among adults.
In the latter case, Scalia wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
For his first few years on the court, Scalia was something of a lone voice, often able to muster only Rehnquist as an ideological partner. That changed in 1991 when the two got a new ally – Clarence Thomas.
Thomas and Scalia have become so closely identified that jokes have circulated that Scalia now gets two votes on the court. Indeed, the two have never split on a church-state case, always voting to oppose separation of church and state. (Rehnquist is usually with them, though he did part company in the Davey case.)
During his bruising confirmation battle, Thomas claimed to support church-state separation, telling the Senate Judiciary Committee that the wall is “an appropriate metaphor.” But once on the court, he wasted no time attacking that principle.
In a concurring opinion in a 1995 case, Rosenberger v. Rector and Visitors of the University of Virginia, Thomas outlined his church-state views in detail.
Thomas asserted that the interpretation of church-state separation attributed to founder James Madison is “extreme” and added, “In any event, the views of one man do not establish the original understanding of the First Amendment.”
Ruling in favor of taxpayer aid to private schools in a 2000 case (Mitchell v. Helms), Thomas ridiculed the idea that government should not be permitted to fund “pervasively sectarian” institutions, implying that such a standard was a product of bigotry. Amazingly, Thomas’ views were endorsed by three other justices – Scalia, Rehnquist and Kennedy.
Two years later, the high court upheld Ohio’s private-school voucher plan in Zelman v. Simmons-Harris. In a concurrence short on legal analysis but long on dicta (a legal term meaning a judge’s personal opinion), Thomas sought to portray vouchers as a civil rights issue.
But it was the 2004 controversy over the Pledge of Allegiance that really caused Thomas to go around the bend. Although the court dismissed the Elk Grove Unified School District v. Newdow case, Thomas could not resist the opportunity to take another shot at church-state separation.
The First Amendment, Thomas wrote in a concurring opinion, “probably” prohibits the establishment of a national religion. But, he went on to say, it does not “purport to protect individual rights.”
Furthermore, Thomas opined, the Establishment Clause does not place limits on state involvement with religion. Under Thomas’ extreme states’ rights theory, states would be free not only to fund religion but to set up official churches as well.
Thomas, who narrowly won a seat on the high court thanks to Religious Right-led lobbying, retains a tight relationship with the right-wing establishment in Washington and beyond. He’s so enamored of the far right that after the November elections he agreed to swear in Tom Parker, an Alabama associate of infamous “Ten Commandments judge” Roy Moore. In November, Parker won a seat on the Alabama Supreme Court.
Thomas, the high court’s second African-American justice, apparently saw no irony in swearing in a man who based his campaign in part on an outreach effort to neo-Confederates. The Southern Poverty Law Center (SPLC) reports that in July, Parker traveled to Selma, Ala., for a rally hosted by neo-Confederates in honor of Gen. Nathan Bedford Forrest, a Confederate general and wealthy slave trader who after the Civil War became the first grand wizard of the Ku Klux Klan.
The SPLC ran a photo of Parker flanked by Leonard Wilson, a board member of the white supremacist Council of Conservative Citizens, and Mike Whorton, Alabama state leader of the League of the South, a group that favors pulling the states of the Confederacy out of the United States. Parker is holding a large Confederate battle flag – the familiar banner beloved by many neo-Confederates. (See photo here: www.splcenter.org/intel/intelreport/article.jsp?aid=491; a photo of Thomas swearing in Parker can be seen on page 11.)
The SPLC reported that a month prior to that event, “Parker showed up at the Elba, Ala., funeral of Alberta Stewart Martin, believed to have been the last living widow of a Confederate veteran. He made himself a quick favorite by giving away hundreds of miniature Confederate battle flags to the 300 people, many in period dress, who gathered for this major neo-Confederate event.”
According to the Birmingham News, Parker said Thomas had told him that a judge should be evaluated on how faithfully he upholds his oath to God, not to the people, the state or the Constitution.
Thomas’ decision to swear in Parker isn’t surprising. He and Scalia have long-standing ties to the far right and are frequently feted at banquets and other events sponsored by ultra-conservative events.
Scalia’s appearances before right-wing audiences are so commonplace they barely raise an eyebrow any more. In May of 2003, he spoke to a Philadelphia-based Religious Right group called the Urban Family Council, which used his appearance to raise money – even though federal judges are not permitted to raise money for political organizations.
His loose lips do get Scalia in trouble on occasion, however. Scalia had to recuse himself from the legal challenge to the Pledge of Allegiance after he gave a speech in Virginia at a Knights of Columbus rally, during which he ridiculed the case and charged that government’s use of religion in a symbolic manner is a harmless tradition.
Scalia has popped off in other public venues as well. In May of 2002, he wrote an essay for the journal First Things, a publication known for its hostility toward church-state separation.
In the piece, “God’s Justice and Ours,” Scalia defended the use of the death penalty, explaining that government is an instrument of God and that it operates with “divine authority behind” it. He urged religious believers to fight “as effectively as possible” against any effort to “obscure” the religious underpinnings of government.
Scalia spoke approvingly of ceremonial uses of religion by government, such as “’In God we trust’ on our coins, ‘one nation, under God’ in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with ‘God save the United States and this Honorable Court,’ annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, ‘God bless America.’”
Observed Scalia, “All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as ‘the minister of God,’ to ‘execute wrath’ upon the evildoer.”
A Supreme Court stacked with ideologues along the lines of Scalia and Thomas could quickly begin rewriting church-state law and hand down decisions that alter social policy for many years to come.
Congress, which remains closely divided on many social issues, has been unable to forge much new ground in this area. Despite constant pressure from the Religious Right, a constitutional amendment banning same-sex marriage seems unlikely to get the necessary two-thirds vote.
Restrictions on abortion, a long-sought Religious Right goal, have also been slow going. Congress has mainly tinkered on the edges, considering bills that recognize “fetal pain” and require waiting periods. What the Religious Right really wants – an absolute ban on all abortions for any reason – would quickly fall in the courts even if it passed the Congress.
The Religious Right knows this; that’s why it wants to change the courts. Movement leaders realized long ago that issues like religion in public schools, government aid to religion, gay rights and abortion would ultimately be decided by the judiciary. A remade Supreme Court, courtesy of Bush, could give them exactly what they want and cut Congress out of the picture entirely.
The Religious Right and its allies know how much is at stake in the battle over the courts. Democrats, with a minority of 45 in the Senate, can block Bush judicial nominees only through filibusters, which require 60 votes to shut down. Frustrated Republicans are talking about using the so-called “nuclear option” – a plan to draft new rules for debate that would end the 60-vote requirement.
But Senate Democrats have signaled that they are not about to roll over on the issue of judges.
In an interview with The Washington Post, Senate Minority Leader Harry Reid (D-Nevada) noted that most of Bush’s judges have been confirmed and that Democrats are only blocking 10 considered too controversial.
“They can threaten the nuclear option,” Reid said. “If they feel that’s great for the institution and the country, let them do it.”
Reid, a former amateur boxer, added that he is prepared “to go behind the pool hall and see who wins this one.”
During the 2000 campaign, Bush was asked what sort of justices he would appoint to the Supreme Court. He cited Scalia and Thomas. Several of his lower court appointments – Michael McConnell and William Pryor come to mind – have been in this mold.
Experts who monitor church-state cases at the high court agree that big changes could occur if the Scalia-Thomas mindset becomes dominant.
Derek Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor University, says Scalia and Thomas embrace a legal theory known as “non-preferentialism” – or the idea that the government can give tax support and aid to religion on an equal basis.
The theory has one fatal flaw, Davis says: In the real world, it is unworkable.
“Of course, the notion that we would support all religions without discrimination is a myth,” Davis told Church & State. “Most Americans would not stand for it, thus ensuring that most taxpayer dollars would find their way to what most of the people believe in: Christian projects and enterprises.”
Under Scalia and Thomas, Davis continued, separation of church and state could “bar little other than supporting only one church as the ‘established’ church. It would also mean the virtually unlimited presence of religious symbols on public property – in public schools, municipal buildings, courthouses, etc. Cases that have been controversial such as Ten Commandments postings or erection of crèche scenes would no longer be controversial; clearly such symbols would be permitted almost anywhere. Religion in a free-for-all competition for public space is not something I think is good for religion in America, but that seems to be where we are headed.”
Americans United is working with progressive allies to monitor judicial appointments and keep that day from coming. The organization will not remain silent if a battle over a Supreme Court nominee erupts.
“A lot is at stake,” said Barry W. Lynn, executive director of Americans United. “Members can count on Americans United to monitor the situation closely and strongly oppose any nominee who fails to support church-state separation.”