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The Missing Clause in Scalia’s First Amendment

[ 149 ] June 17, 2014 |

In a dissent from a denial of cert yesterday, Antonin Scalia has another one of his trademark “let’s hope the showy phrase helps to distract you from how terrible the underlying argument is” moments:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music. [Cites omitted; place where his argument becomes transparently wrong highlighted.]

I suppose there are people who are offended by individuals engaged in public displays of religious faith the way that Scalia is offended by rock music and Stravinsky — kudos to Scalia’s hapless clerks for not including or omitting any reference to the kids today with their baggy pants and hippity-hop music — although I’m confident that their number is much smaller than Scalia thinks. (As Dahlia Lithwick observes, Scalia’s constant sense of religious persecution is a major theme in new Scalia bio.) But irrespective of how common it is to be offended by other people expressing religious beliefs in public, it’s completely irrelevant to this case, since nobody thinks that the public displays of religious belief by individuals can be limited by anything but the same neutral space, time, and manner restrictions that might apply to the public playing of music.

Scalia ultimately acknowledges this in the highlighted passage, which seems to assume that the distinction between religion being endorsed in an official public ceremony and religion being endorsed by private individuals in public is just a arbitrary one with no meaningful difference. (At least!) But this distinction is extremely important, rendering the previous paragraph completely irrelevant. Which brings us to the related fallacy in Scalia’s argument — the assertion that the First Amendment simply “favors” religion while it is “agnostic” about music. The problem, needless to say, is that while the First Amendment protects the religious beliefs of individuals, in the previous clause it disfavors religious endorsements by the state. The distinction between expressions of religious belief by individuals in public and the endorsement of religion by the state and its officials mirrors the distinction in the First Amendment. Reasonable people can disagree about whether the Establishment Clause forbids holding public school graduation ceremonies in a church (although the arguments on behalf of the state strike me as very weak), but the idea that the case presents an issue no different than a private individual saying a prayer on a municipal bus is remarkably silly.

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  1. Snarki, child of Loki says:

    Since when has Scalia ridden a “public bus”? And which one is it, because I’d like to sit nearby and regale such a clearly appreciative audience with a long musical saga in honor of Odin.

    My musical abilities, unfortunately, have been all too accurately described as “Like the Sex Pistols, but without the beautiful harmony or rhythm”

    • Theophylact says:

      Perhaps in Queens, on his way to parochial school.

      Not clear that he hates Le Sacre du printemps except in public places. But if he does, it’s even older than he is (it premièred in 1913).

    • Snarki Rotten says:

      I’m on a public bus mission for Scalia
      I can’t figure out his watery love
      I’ve gotta solve his mystery
      He’s sitting it out in heaven above

      Bus-mission
      We’re going down, down, he’s dragging us down

      Bus-mission
      I can’t tell you what I’ve found

    • SFAW says:

      “Like the Sex Pistols, but without the beautiful harmony or rhythm”

      Or like goose farts on a muggy day.

  2. joe from Lowell says:

    Um…since music is expressive, wouldn’t the First Amendment protect it, as opposed to being agnostic?

    Scalia’s argument is just all sorts of terrible.

  3. Anderson says:

    He really wrote that? Wow. That’s shady-trial-lawyer legal reasoning there.

  4. Steve LaBonne says:

    Atrios just made the very good point that it’s pretty weird for a Catholic (and of course Nino is far from the only one) to take this position, given the long history of intolerance against Catholics in this country. That history ought to make Catholics especially wary of government endorsement of religion, or so one would have thought.

    • MAJeff says:

      Let’s ask the LDS about that one, too, shall we?

    • NonyNony says:

      Conservative Catholics in this country are short-sighted nitwits when it comes to politics. They’ve been an integral part of a coalition to get abortion outlawed, and they’ve managed to convince their fellow travelers that birth control is sinful (something that Protestants would have mocked decades ago – in fact something Protestants DID mock decades ago). And so they’ve somehow convinced themselves that they’re all in this together.

      I’d like to see some of them read the Ten Commandments that their “fellow travelers” want to have posted since they aren’t the “real” Ten Commandments. But given my experience with my family I’m pretty sure that most conservative Catholics think that Catholic teaching on anything begins with “why you shouldn’t have sex except to have kids” and ends with “abortion is wrong”. And since their evangelical bedfellows seem to have the same theology, I guess I can see why they’ve gotten so short-sighted about their own history.

      • catclub says:

        “why you shouldn’t have sex except to have kids”

        Isn’t it “why you shouldn’t have sex except with kids” ?

      • DAS says:

        “why you shouldn’t have sex except to have kids” [...] their evangelical bedfellows seem to have the same theology

        Not quite the same theology. Protestants could, if they wanted to, use condoms whereas every time Catholics have sex, they have to have kids. However, despite the efforts of Protestants to promote the idea of sex for pleasure, children continue to multiply everywhere. ( / Monty Python )

        • Donalbain says:

          Yeah, it is important to note that the Protestants have no issues with the method of birth control that puts the man in control (condom), only with ones that allow the woman control over her own body.

      • Rarely Posts says:

        They’ve managed to convince their fellow travelers that birth control is sinful (something that Protestants would have mocked decades ago – in fact something Protestants DID mock decades ago).

        Just FYI: 40 years ago, many Evangelicals did not think that abortion was morally problematic. The transformation in evangelical opinion on abortion between 1970 and 1985 was astounding. But no one remembers.

    • Joe says:

      Catholics are part of the “in” crowd these days unlike when kids were given corporal punishment for not using the right bibles.

    • Katya says:

      IIRC, modern separation clause jurisprudence was basically driven by anti-Catholic sentiment. People didn’t want their tax dollars buying books or buses for parochial schools. A little history lesson might be useful, if they were open to learning.

      • NonyNony says:

        IIRC, it was more that the Catholics and Jews (and some Protestants – like Baptists) objected to public schools essentially being tax-funded Protestant schools – generally mainline Protestant schools of some kind based on whatever the majority religion of the area was.

        It was a damn long and hard fight from everything I’ve read too. Which is why whenever a conservative family member says something stupid about prayer in school it makes me sad. They don’t even realize that if there were prayers in most public schools they sure as hell probably wouldn’t be Catholic prayers.

      • Manju says:

        IIRC, modern separation clause jurisprudence was basically driven by anti-Catholic sentiment.

        Case in point:

        Klansman’s Manual (1925):

        (b) The true Klansman is pledged to absolute devotion to American principles. Before the sacred altar of the Klan, face to face with the Stars and Stripes, and beneath the holy light of the Fiery Cross, he pledged himself in these words; “I swear that I will most zealously and valiantly shield and preserve, by any and all justifiable means and methods, the sacred Constitutional rights and privileges of . . .”

        1 Free public schools.

        2 Free speech and free press.

        3 Separation of church and state.

        http://history.hanover.edu/courses/excerpts/227kkkmanual.html

      • jake the antisoshul soshulist says:

        The ability of people to ignore unpleasant historical facts appears to be almost infinite.

    • pseudonymous in nc says:

      That particular strand of white-ethnic conservative Catholicism merged from its regional bases to become a national political presence in the post-WW2 decades, and made its peace with fundies in the 80s. It stands out on a limb. I’m sure Nino thinks that the Vatican is persecuting him right now: “infamy, infamy, they’ve all got it in for me!”

      • Murc says:

        I’m sure Nino thinks that the Vatican is persecuting him right now:

        Y’know, I don’t think much of Francis, but god damn if he isn’t pissing off the right people.

        I remember when he started spending major Catholic holy days going into prisons and ministering to the people there. People were outraged. Beneath the station of a pontiff, they all shrieked.

        Irony is dead, but with luck it’ll rise on the third day.

    • ChrisS says:

      Everyone wants religion in their politics until they get to figure out which flavor is the right one.

    • Shakezula says:

      You’re giving Scalia far more credit than he deserves. The man is an idiot who can’t seem to control his impulse to troll America.

      Plus, it seems that every rabidly Christian douchewad thinks America is just a tiny nudge away from his team taking charge of everything, especially them uppity women.

    • joe from Lowell says:

      American Catholics forget history almost, but not quite, as quickly as other Americans.

    • Michael C says:

      Yeah, and indentured English and Irish immigrants in the 1780′s ought to have been wary of slave-owning and slave-trading businessk opportunities once they had bought their own freedom. But they weren’t because power, freedumb, bidness.

    • Francis Volpe says:

      Yeah, folks don’t realize The Inquisition was a real thing going on in life during the Founding Fathers’ lifetimes, and that sensible people regarded it as the deathly travesty it was. The Inquistion was past its peak by then, but if you want to know what Catholics=Inquisition meant in the Founding days, just think Islam=9/11. (I don’t endorse either of these principles, but you don’t have to go far in the modern day to find people who endorse the latter one.)

    • Barry says:

      “Atrios just made the very good point that it’s pretty weird for a Catholic (and of course Nino is far from the only one) to take this position, given the long history of intolerance against Catholics in this country. That history ought to make Catholics especially wary of government endorsement of religion, or so one would have thought.”

      No, that’s a ‘back in the day’ thing. Scalia is a product of a generation in which the Catholic and Protestant right made nice.

  5. Murc says:

    So, does Scalia just not understand the First Amendment, or does he understand it just fine and has committed his life to undermining it en route to a theocracy?

    (And if the latter, that’s just dumb. You’re Catholic, motherfucker. You think the fundies have forgotten that? They have not. Once they establish their Gilead and stone all the gays and formally enslave women and blacks, you’re next.)

    • mds says:

      Once they establish their Gilead and stone all the gays and formally enslave women and blacks, you’re next.

      Non-Messianic Jews who aren’t already in Israel would actually probably come before the idol-worshipping papists, given their likely politics and their tepid objections over repeated co-option of “Holocaust!” by people who are missing their “Gott Mit Uns” belt buckles. Other secularists, and liberal protestant Christians, might also get a higher ranking, depending. (Louis Gohmert sure as fuck looked and sounded like he wanted to have Barry Lynn dragged out and executed for heresy.) But yes, the Queen of Heaven would eventually fall.

      • NonyNony says:

        Eh – I bet they go for the Christians first. That’s generally how infighting works – once you’re on top the folks who upset you the most are the ones who believe 99% of what you believe.

        The 99% in common is enough to keep you together when you’re fighting a common cause, but once that’s done it’s the 1% that differs that you’ll focus on.

        • Bill Murray says:

          My money would be on the atheists or was that included in establishing their Gilead? I don’t know much about Gilead, except not to stop their if I need some Tiger Balm for my back. Also, Jeff Foxworthy hasn’t hit it in his TV spots for the Great American Bible Challenge

          • DrDick says:

            I definitely go with unbelievers first, then the Jews and other infidels, and only then will they go after the other Xtianists. They will need their help to eliminate the first two groups.

            • Derelict says:

              Ain’t no reason beyond pure logistics why they can’t go after all of ‘em at once. This may invoke Godwin, but Himmler managed to deal with the Jews, the gypsies, the gays, a bunch of assorted slav unter-menchen, a whole lot of Catholics who didn’t line up just right when ordered, and so on.

      • DAS says:

        First they came for the gays, but I am not a gay, so I kept silent. Then they came for the atheists, but I am not an atheist, so I kept silent. Then they came for the Jews, but I am not a Jew, so I kept silent. I figure that by the time they get around to coming for the Catholics, they would have mellowed out quite a bit and not cared to do away with us. ( / Scalia and his ilk )

        • Aimai says:

          No, it goes like this:

          First they came for the Jews and the Jews were wrong so fuck ‘em.
          Then they came for the gays but the gays were wrong so fuck ‘em.
          Then they came for me and I was shocked and surprised because I’ve always been known to be right.

    • Karen says:

      Catholic theology is actually supportive of theology as long as it’s their own. The Vatican only supported the separation of church and state because so many immigrants to the US were Catholics who lived under a state controlled by Protestants who didn’t actually create an established church. In fact, I think there’s a good argument that the Catholic experiment with liberalism was entirely the product of American immigrants and will fade away now that those immigrants have assimilated. The Scalia types will return to Syllabus of Errors theology and the Vatican II folk mass sorts will become Episcopalians, Evangelicals, or nothings.

      • Karen says:

        Ugh. Cathlolic theology supports THEOCRACY.

      • Este says:

        Agreed entirely. I remember back around 2000 or 2001, when I was a wee teenager who couldn’t vote and hadn’t yet been disillusioned, I read an NY Times op-ed piece by a Catholic cardinal. I forget which cardinal. But I still remember the op-ed to this day because I was so appalled by it. The cardinal was making an anti-death penalty argument, and it went as follows: it’s not so bad to have the death penalty under an absolute monarchy, because then it conveys the effect of a punishment conferred from on high by God. But it’s really terrible to have the death penalty in a democracy because then it’s just mob rule.

        It was such an extremely illiberal, anti-democratic argument that it stuck with me. I’ve remembered it as showing the true colors of the Church even in its modern incarnation (at least, the conservative, “official” church–not counting radical nuns). The conservative church says it’s okay for a government to use death punitively and to assume the authority to decide who “deserves” death and who is “worthy” of life–provided that it’s an authoritarian government.

        • That’s an interesting argument. I guess it means God is too scrupulous to meddle with a ballot box.

        • cpinva says:

          bearing in mind, Vatican city didn’t officially do away with the death penalty until fairly recently. aside from france, they had one of the longest running uses of the guillotine, in history. not to mention, all the other nifty ways they had, painfully, of doing you in. heck, they were even an outsourcer of executions, for other countries.

        • net full of holes says:

          You appear to be misremembering that oped to this very day. It was not by a cardinal, it was not making an anti-death penalty argument and it wasn’t the Church revealing its true colors but one Anton Scalia. It was a piece by Sean Wilentz’s on Scalia’s speech to at the University of Chicago Divinity School in 2002.

          “The Lord,” Mr. Scalia explained in Chicago, “repaid — did justice — through His minister, the state.”

          This view, according to Mr. Scalia, once represented the consensus “not just of Christian or religious thought, but of secular thought regarding the powers of the state.” He said, “That consensus has been upset, I think, by the emergence of democracy.” And now, alarmingly, Mr. Scalia wishes to rally the devout against democracy’s errors. “The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible,” he said in Chicago.

          From Justice Scalia, a Chilling Vision of Religion’s Authority in America” NY Times 8 July 2002

  6. Anna in PDX says:

    Huh, I am nonplussed by the hate on Stravinsky. I wonder if he just dislikes 20th century classical music in general and is using Stravinsky as a shorthand, or if he just prefers Shostakovich, Bartok, and Schoenberg.

    • Malaclypse says:

      I read it as a too-clever-by-half riot reference.

      • MattT says:

        Me too, although given that it’s Scalia, Stravinsky as code for “all of 20th century modernity” is not out of the question.

      • efgoldman says:

        I read it as a too-clever-by-half riot reference

        Except the riot was about the dancers, who were under-rehearsed and couldn’t follow Stravinsky’s rhythm changes.
        Two weeks later, when Monteux conducted the same music in concert for the first time, it was a riotous success.
        Monteux lived long enough for me to see him conduct in Boston in the late 1960s.
        (And Loomis probably hates him. he was the conductor brought in to help break the Boston Symphony musician’s strike in 1920. It worked, although the union eventually won everything they wanted.)

        • Matt T. in New Orleans says:

          Reckon Scalia knows that?

          • efgoldman says:

            Reckon Scalia knows that?

            Hey, I’m not sure he knows how many Constitutional amendments there are. He certainly never read any after the second.

            • chris says:

              Slander! (Or is it libel here?) I bet Scalia has never had a servicemember in his house in his life, so he may well have made it at *least* as far as the third.

              Seriously though, he is occasionally surprisingly good on criminal procedure, not at all what you would expect from a genuine partisan hack.

              See, e.g., the federal sentencing guidelines mess — IIRC, Scalia argued for cutting the bullshit and treating it as the hierarchy of greater and lesser offenses it functionally was, requiring each aggravating factor to be charged and proved beyond a reasonable doubt. A radical departure from the current practice of “as long as they’re proved guilty of something, we can rely on the uncorroborated testimony of informants or co-conspirators to decide how serious it really was”.

              I think he does have principles, it’s just that I find some proportion of his principles despicable. “Double standards are OK in a good cause” is a principle, of sorts.

    • postmodulator says:

      I assume Nino has a beef with modernism generally, and with anything that came afterwards. Stravinsky, Joyce, Picasso, doesn’t matter. Think of it as one more battle that the rest of us settled a hundred years ago that the wingnuts want to relitigate.

    • Vance Maverick says:

      I favor the first explanation. But reading this makes me realize a sort of a paradox.

      On the one hand, I care more about Stravinsky than about religion. But one level up into the meta, I care more about other people’s attitudes toward religion than about other people’s attitudes toward Stravinsky. Of course one can tell the story in confusing ways: I know that Stravinsky himself was religious — and I know that at some times and places, matters of music have been intensely political (thinking here not of the Sacre riot but of people breaking down walls to hear Gubaidulina in the Soviet Union). But the analogy fundamentally fails because religion is, by definition, about what’s most important. I reject it, which is not a big deal personally, but on the political level, remains one of the biggest.

      • Vance Maverick says:

        And of course music is about what’s important, but only in a squishy sense of the word “about”. Even if you equate music with lyrics, that’s still just poetry. Religion entails beliefs and behavior and group identity and the relation of the human to the universe — all those questions which, even if your own answer is “No” or “Huh?”, you don’t want other people answering for you.

      • postmodulator says:

        As a pretty serious Stravinsky fan once put it:nmInformation is not knowledge. Knowledge is not wisdom. Wisdom is not truth. Truth is not beauty. Beauty is not love. Love is not music. Music is the best…

        So, no, it’s not true that religion is, by definition, about what’s most important. Some of us disagree.

        • Vance Maverick says:

          I don’t think you do. ;-) As with Bill Murray’s example of the punks above, if you think you take something as seriously as religion does, you’re a victim of hyperbole. That’s why the harm of religious infringement is so serious. We need to make them leave us alone to pursue what we think is important.

        • Mary (The girl from tha bus) says:

          +1

    • Jordan says:

      Nah, he just hates Rites of Spring, the (D.C.!) “rock music” band, and Rite of Spring, the Stravinsky work.

      No spring! No rites!

    • Bruce Baugh says:

      Kids these day with their hula hoops and their toe-in choreography and their affairs with Coco Chanel.

    • Este says:

      It’s conservative argument-via-symbolism. You might as well try to understand the reasons for conservatives’ peculiar hate for lattes, and why they settled on lattes rather than espresso or chai.

      • Bruce Baugh says:

        That can actually be an interesting exercise sometimes, finding out just how large a fraction of the cause starts with some individual’s grudges and whose grudges got enshrined.

      • Aimai says:

        But its not even about music–the example is about shared and public spaces. The only reason why someone hears someone else’s objectionable music these days is if their ipods are on too loud and they are destroying their own eardrums. In reality, since the invention of head phones, no one annoys other people with their personal music and shared public spaces are rather quiet (with the exception of cel phone users arguing with their loved ones or business associates).

        Music is a terrible analogy and in any event operates no differently than any other nuisance noise might. And we actually have laws preventing people from monopolizing shared public space with private noise–we have laws regulating when workmen can start, or how high the decibel level of work can be, or zoning for factories, and other noise pollution ordinances. Religion and religious activity in the public square could perfectly well fall under such a nuisance/pollution style ordinance. In fact IIRC there was a discussion of religion/noise pollution problems in Egypt where dueling minarets blasting the call to prayer at top level were actually destroying people’s harmony and quiet. IIRC one of the issues was that many mosques had switched to a recorded call to prayer, were blasting it out at top levels, and were not syncronized exactly for timing so that in an area with a lot of mosques you could be hearing the same words just slightly off tempo but overlapping for lengthy periods every prayer period.

    • Jewish Steel says:

      When I hear the Symphony Of Psalms, I reach for my gun.

  7. Joe says:

    The dissent starts off a bit rough:

    Some there are—many, perhaps—who are offended by public displays of religion.

    A bit Yoda-y. The attempt to treat schools like legislative halls and the like is a step too far even for Alito and Roberts apparently. But, it might have been a close thing:

    http://opinionator.blogs.nytimes.com/2012/07/11/the-mystery-of-john-roberts/

  8. Brien Jackson says:

    Another instance of Scalia skipping a potentially plausible argument in favor of pretending he’s the world’s most influential talk radio host? I’m SHOCKED!!!!

  9. R. Porrofatto says:

    I’m afraid this is all my fault. I was waiting on line at the DMV, and, as usual, I had Petrouchka playing on my boombox (I save Rite of Spring for bus rides). This short pudgy guy who looked like a Hans Holbein painting of Leo Gorcey started busting my chops. He made some hand gesture on his chin and screamed “vaffanculo” at me. I had no idea he was a Supreme Court Justice.

    My apologies to those who still believe in the separation of church and state.

  10. DrDick says:

    I am not an expert, but “remarkably silly” seems to be a hallmark of Scalia’s jurisprudence.

    • efgoldman says:

      I am not an expert, but “remarkably silly” seems to be a hallmark of Scalia’s jurisprudence.

      Alas, wish it were remarkably silly. Unfortunately, Nino’s jurisprudence is remarkable, but not at all benign. It is nasty, and mean, and harmful to people and institutions, including the Constitution. It is not in any way how we understand “judicial.”

  11. Denverite says:

    although I’m confident that their number is much smaller than Scalia thinks.

    I dunno. I suspect there are lots and lots of people who get offended when they see a Muslim praying in public. I further suspect that Nino would be one of them.

  12. Shakezula says:

    Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter

    That Jesus du Nazareth fellow, for one.

    Also – Municipal bus? Criminey what a douche.

  13. […] The Missing Clause in Scalia’s First Amendment – Lawyers, Guns & Money : Lawyers, G… Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward … […]

  14. cpinva says:

    at what point in his career as a lawyer and jurist, am I supposed to believe mr. justice scalia was an intellectual heavyweight? at this point, the only thing keeping him from becoming the court’s resident mascot, is mr. justice Thomas.

  15. Jeremy says:

    On the subject of today’s terrible Scalia dissents, his one in the straw purchasers case seems pretty awful as well. Aparently, he doesn’t see how the statute could possibly be construed to use the word buyer to mean the person physically exchanging money for a gun, rather than the person providing the money and who intends to take ownership of the gun.

  16. […] R. Porrofatto could see this week’s Scalia dissent coming from a mile away, thanks to a chance encounter: […]

  17. […] The Missing Clause in Scalia’s First Amendment, Scott Lemieux, Lawyers, Guns & Money, June 17, 2014 […]

  18. […] others has made the leap to the Supreme Court, with Justice Scalia arguing incoherently that the “First Amendment explicitly favors religion” in order to justify the hijacking of a school event to force religion on the non-believers in […]

  19. […] others has made the leap to the Supreme Court, with Justice Scalia arguing incoherently that the “First Amendment explicitly favors religion” in order to justify the hijacking of a school event to force religion on the non-believers in […]

  20. […] on others has made the leap to the Supreme Court, with Justice Scalia arguing incoherently that the “First Amendment explicitly favors religion” in order to justify the hijacking of a school event to force religion on the non-believers in […]

  21. エムシーエム リュック 激安

    The Missing Clause in Scalia’s First Amendment – Lawyers, Guns & Money : Lawyers, Guns & Money

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