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The Missing Clause in Scalia’s First Amendment


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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