The Star-Ledger reports:
In the synagogue that is home to America's oldest Jewish congregation, he noted that in Europe, religion-neutral leaders almost never publicly use the word "God." But, the justice asked, "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? I don't think so."
It's a serious error to mix past and present tense like this. European leaders today are very religion-neutral, but what bearing does this have on how safe Jews were back in the 1930s and 40s? A fair evaluation would require looking at the actual policies during the first half of the 20th century, the decades leading up to the attempted extermination of Jews in Europe. To what degree were public polices actually religion-neutral? No explicit separation of church and state existed at the time, that's for sure. Even more important is the fact that the Holocaust was carried out by God-fearing Christians, not secularists. Why do you suppose none of this is noted by the "reporter"?
An "originalist," Scalia says he believes in following the Constitution as written by the Founding Fathers, rather than interpreting it to reflect the changing times.
Which "Founding Fathers" — the ones who wrote the Constitution or the ones who actually gave it legal force (i.e., the people who voted for it in state conventions)? Once we have decided on which group to pay attention to, which members of those group should we focus on? It's not as though any of these groups were monolithic. There were at least as many divisions and disagreements then as there are today. It's like someone looking back upon our era from 200 years in the future and saying "we must follow what they intended," lumping Democrats and Republicans together in the same boat.
Scalia told them that while the church-and-state battle rages, the official examples of the presence of faith go back to America's Founding Fathers: 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. ... "None of this is compatible with what we say when we express the so-called principle of neutrality," Scalia said.
I hope that his portion reflects the abject ignorance of the reporter rather than the unforgivable ignorance of Scalia — much as I regard his legal "theory" a travesty, he's never given the impression of unscholarly ignorance. The word "God" on all our currency does not date back to the founding of the government. The phrase "under God" wasn't added to the Pledge until much later — and even the Pledge itself doesn't date back to the founding of the government. Chaplains in the military and legislature were not approved of by everyone involved. James Madison, for example, objected — and he's as much a "Founding Father" as anyone. Scalia can't ignore him without seriously amending his so-called "orginalism."
That aside, it's important to think very carefully about the implications of Scalia's claim that the nature of American government is "incompatible" with the "principle of neutrality." If government is not neutral, then it must show favoritism and partisanship. The exact extent and nature of such favoritism may vary, but in principle it must be accepted as at the very least valid and permissible... possibly even good, just, and preferable.
Thus, government can favor monotheistic faiths over polytheistic faiths, theism over atheism, Christianity over Islam, Protestantism over Catholicism, organized churches over unorganized religious beliefs, ancient religions over modern sects, etc. The only way to deny the permissibility of favoritism in any such case is to insist that the government must be "neutral" between the two sides, not advancing or inhibiting one or the other. Neutrality sends the message that the government doesn't consider any one option to be better, preferable, or favored over any of the others — but that's exactly what Scalia denies should exist. Thus, he thinks it acceptable for the American government to send the message that some religious options are favored, preferable, and better.
This is the sort of justice that the American people chose when they voted for George W. Bush.
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