Antonin Scalia

On Realism and the Religion Clauses of the First Amendment

delivered 2 January 2016, Archbishop Rummel High School, Metairie, Louisiana

 

[audio to text transcription final pass accuracy verification in process]

I'm sorry. I apologize for being late. It was American Airlines who did it to me.

I'm very happy to see you at this -- at this Catholic boys school. I went to a Catholic boys high school myself, a Jesuit military school, believe it or not, in Queens, New York. Well, I grew up in Queens -- the military school was in Manhattan, and I'll have something to say about what I learned there in a bit.

But that's not the subject of my talk. The subject is "Realism and the Religion Clauses." It deals mostly with the religion clauses of the First Amendment which goes, "Congress shall make no law respecting an establishment of religion" -- That's called the "Establishment Clause" -- "or prohibiting the free exercise thereof" -- that's called the "Free Exercise Clause."

Now, while I will talk a lot about that -- about those clauses -- actually, they’re really just a medium for my addressing some more general propositions. Indeed, the talk will be closer to discussing constitutional construction: What should the courts do when they construe the United States Constitution?

Now, before I begin my sermon, let me give you a text and I’ll come back to it at the end. But you can ponder it while I’m talking. Those of you who are old enough to remember the campaign of Robert Kennedy way back when will recall that he used a single wonderful line in his campaign. It was something like this: Some men see things as they are and say “why?”  I dream things that never were and say “why not?”1 I’ll just leave you to speculate about that and I’ll get back to it at the end.

As you’ve heard, I’ve been in this rut for 30 years. Looking back over all of the religion clause cases I have sat on in that period, [I've really been], believe it or not, a fairly centrist jurist, which means most of the time I was voting with the majority. [inaudible]. At least I’ve been centrist by my [law?] standards.

Of all the religion clause cases that I have decided from over the 22 years, the one that upset me the most -- by which I mean the one that, in my estimation, strayed farthest from what I’ve considered to be the proper methodology for adjudicating these cases -- was a case that I’m sure you’ve never heard of, called Texas Monthly versus Bullock. There, the Supreme Court struck down, under the Establishment Clause, Texas’s practice of exempting doctrinal religious publications from Texas’s sales tax. That practice of exempting religious publications from sales taxes existed in many states. Indeed, as a matter of administrative practice, it probably existed in all states, at least as far as sales of such publications by religious organizations are concerned. I don’t know about here but I never paid a tax on the literature I bought from the vestibule of the church. Did you? I don’t think so.

I suspect, moreover, that that was a practice that had existed for many, many years. I would have thought that the difficult constitutional question was not whether the establishment clause permitted the exemption of the Bible, the Quran, et cetera, from sales taxes, but rather whether, at least, when they were sold by religious organizations, the Free Exercise Clause did not require their exemption from sales taxes. The case was decided, however, not by considering the long accepted practices of the American people but by a mechanical application of what is called the “Lemon Test,” which said that a law or government practice violates the establishment clause if it has either the purpose or the effect of favoring religion over non-religion; mind you, not favoring one denomination of religion over another but even of favoring religion over non-religion. That is the so-called neutrality principle which my Court continues to pronounce.

When I was in grammar school, I went to the public P.S. 13 in Queens in the 40s. And New York City had a practice called “released time.” I don’t know whether you had it here in New Orleans, but on Wednesday, if you had a note from your parents, you could get out of school early at two o’clock and go off to your church and synagogue and get religious instruction. I mean it was a good deal -- you got out of school; you took your time getting there and kicking cans along the road. It was fun.

Well, some, you know, anti-religious organization -- probably the ACLU -- brought a lawsuit saying that this was unconstitutional. In the 40s, the Supreme Court upheld the practice.2 Indeed, the pleading was written by William O. Douglas, who, God knows, was not a religious man nor a conservative man. But his opinion -- this is almost a verbatim quote -- he said -- the Court said -- it was his opinion for the Court, “We are a religious people whose institutions presuppose a Supreme Being." "When the state" accommodates its practices to the religious needs of our people, it acts in "the best of our traditions."3 And so New York City’s released time program was uncut. Twenty years later, the Supreme Court does a 180 degree flip and adopts the neutrality principle: The state must be neutral between religion and non-religion.4

To tell you the truth, there's no place for that in our constitutional tradition. Where do we come from? The same Congress, the first Congress in 1789 that proposed the Bill of Rights, that proposed the First Amendment to be ratified by the people -- that same Congress instructed George Washington, the President, to proclaim a day of thanksgiving, so observed, thanking the Almighty for all of his blessings to the country. So where is this notion that you can’t favor religion over non-[religion]? To be sure, you can’t favor one denomination over another. But can’t favor religion over non-religion?

On 9/11, my wife and I were in Rome. I was attending a conference of judges and lawyers and I was watching the television as I was unpacking, watching these planes go into the twin towers in my home city. That night, the President gave a speech to the American people and he ended the speech as American presidents normally end their speeches: "God bless" the United States.5 The next morning I met some of the judges from other countries who had watched the speech the night before. and one of them said to me, “How I wish that the President or the Prime Minister of my country, at a time of national crisis or emergency could say ‘God bless (whatever the country was).’” Absolutely forbidden in France, in Italy, I believe in Germany, in Spain. This is what the French call the principle of laïcité, the principle of secularism: Public officials are not to invoke the Deity. It goes back to Napoleon. And all of the countries that Napoleon conquered adopted this principle.

Fortunately for us, we were never conquered by Napoleon and we never had that principle. But there are those who would like to impose it upon the United States, which I have no problem with if they do it democratically. Sure, enact a statute saying, “The President shall not invoke the Deity” --  if you can get that through; it’ll never happen. But if you did it that way, it would be legitimate. But don’t cram down the throats of an American people that has always honored God, on the pretext that the Constitution requires it.

There is a saying that’s been attributed to various famous men including Bismarck and Charles De Gaulle. I think it fits best with Charles De Gaulle. De Gaulle is supposed to have said, and I quote, “God takes care of little children, drunkards, and the United States of America.”6

And I think that's true. God has been very good to us: That we won the Revolution was extraordinary; the Battle of the Midway was extraordinary. I think one of the reasons God has been good to us is that we have done Him honor. Unlike the other countries of the world that do not even invoke his Name, we do Him honor -- in presidential addresses, in thanksgiving proclamations, and in many other ways. There is nothing wrong with that and do not let anybody tell you that there is anything wrong with that.

Oh, but what about Thomas Jefferson? The Wall of Separation between Church and State? You’ve heard about that right? Let me tell you about Thomas Jefferson. When he was buried at Monticello -- I used to be on the faculty of the University of Virginia, so I am very familiar with Monticello -- he directed that three of his accomplishments be set forth on his tombstone. One of them was not "President of the United States." ("That’s a little show-off, you know...I don't want that to appear on my tombstone.') The three he wanted to appear were: [1] author of The Declaration of Independence; [2] author of the Statute of Virginia for Religious Freedom; [3] father of the University of Virginia. All three accomplishments, as it turns out, made place for the Deity.

The Declaration of Independence, of course, which he wrote, refers to "the separate and equal station to which the laws of Nature and of Nature’s God entitle" the American people. It appeals to "the Supreme Judge of the world for the rectitude of our intentions" and pledges the signatories’ "Lives," "Fortunes," and "Sacred Honor," quote, "with a firm reliance on the protection of divine Providence." And that’s the first one.

The second one, the Statute of Virginia for Religious Freedom, begins as follows:

Well aware that7 Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.

As for the third one, the "University of Virginia," its main building, The Rotunda, ha[s] a room that was designed to accommodate religious services. And it was reserved for that purpose at least as late as 1829, when a Presbyterian minister and an Episcopal clergyman were invited to preach on an alternate service. So don’t let anybody tell you that the wall of separation between church and state -- that’s not what Thomas Jefferson meant by it -- that the state could not favor religion over non-religion. It could not favor one sect over another, but that’s a different question.

There are many other religion clause cases at my Court, decided by application of formulaic abstractions, such as the "principle of neutrality" -- which we made up. I mean, [inaudible at: 16:25] test for the Establishment Clause.

Some time ago, until we overruled it, we had a similar formulaic test for the Free Exercise Clause, the Sherbert versus Verner test which said that free exercise is denied whenever a person is prevented from ignoring the valid law for religious reasons, unless there is "a compelling state interest" in enforcing the law. That’s what Sherbert versus Verner said. We later overruled that case and Congress has enacted a simpler provision by statute. And that’s what’s going to be discussed in the Little Sisters of the Poor case that’s coming up. I’m not talking about the statute. I’m talking about what the constitution requires.

Now, I have nothing against formulaic abstractions such as "neutrality principle" or “you can do anything God tells you to do unless there is a compelling state interest that may be preventing you.” I have nothing against such abstractions. They are the means by which judicial arbitrariness is checked. But unless it is thought that the most fundamental laws of our society were meant to be made up by judges, those formulaic abstractions ought to be rooted in, or to be derived from, the text of the Constitution; and, where that is in itself unclear, from the [inaudible at: 18:12] practices that the text represents.

Where the traditionally crafted abstraction, be it the Lemon Test or the Establishment Clause or Sherbert versus Verner for the Free Exercise Clause, or the Fourth Amendment principle, for example, that a search without a warrant is unconstitutional -- where any of those abstractions conflict with the reality of the practices of the American people. When that happens, when they come up against a long-standing tradition that contradicts them, it is the abstraction and not the tradition that must see it.

I call this "The Shakespeare Principle," which is one of the things I learned at Xavier High School. I had a crusty old Jesuit for English. In those days, Jesuits could be tough and crusty. I call it the Shakespeare Principle. I had Father Tom Matthews [ph] for English and we were discussing a play. I think it was Hamlet, but I’m not sure -- one of Shakespeare’s plays. And one of my classmates, I remember the name Anthonelle [ph], volunteered some criticism of Hamlet, very sophomoric, of course. Father Mathews looked at him with a steely glaze and said in his Boston accent, “Mister, when you read Shakespeare, Shakespeare’s not on trial. You are.”

I have always thought that that’s a very good principle, useful in many areas of life, including the law. And what Shakespeare is to high school students, the society’s long accepted constitutional traditions are to the prudent jurist. He does not judge them. He is judged by them. The very test of the validity of his analytic formulas, his rules, is whether, when applied to traditional situations, they yield the results the American people have traditionally desired. If so, they can be applied to new situations so that the constitutional traditions have not yet addressed with at least the probability, if not the certainty, that the results they produce are a continuation, an elongation if you will, of the same constitutional tradition.

Indeed, I think it is fair to say that accepted constitutional traditions are not just the criteria by which judicial rules ought to be judged, but even the raw material out of which they ought to be derived. Constitutional rules are formed, or ought to be formed, much as the common law used to be: by taking the givens of accepted practice and asking what principle would explain these results. That principle then becomes the governing rule -- unless, perhaps, in some later case it encounters another solidly accepted practice that simply does not fit with that rule, whereupon the common rule must be adjusted so that it will continue, accurately, to represent the common law.

Now, I think it’s the same thing with constitutional interpretation, where the text is not clear and you must rely upon what the people have understood it to be for 200 years.

Now the polar opposite of this approach is the one that makes the tradition bend to the abstraction. Texas Monthly, the case I mentioned earlier, is an example.

There’s a middle way too, equally wrong -- the approach of letting the contradictory traditions stand but not modifying the abstraction to take account of it. A case called Walz versus Tax Commission of the City of New York is a good example of this. It was a case involving the constitutionality under the Establishment Clause of real estate tax exemptions for property used exclusively for religious worship. Every state had had exemptions for church-owned property from the beginning, and every state still ha[s] it. So the Court, applying its neutrality principle -- can’t favor religion over non-religion -- what result would it produce? [inaudible at 23:35] Of course the Court did not have chutzpah to do that.

As Justice Brennan’s concurrence acknowledged, “rarely, if ever, has this Court considered the constitutionality of a practice for which historical support is so overwhelming." The Court did not, however, sweep these exemptions aside like the sales tax exemption in Texas Monthly. However, it also did not adjust its Establishment Clause jurisprudence to take account of that, to take account of the laws. It is still adhering, that is, to the supposed principle of neutrality, that forbids favoring religion over non-religion. It said it’s okay to give tax exemption to churches and synagogues, even though you don’t give them to some ethical organization, or poker clubs, or whatever. How do you explain that?

They did the same thing in a later case involving a similar tradition that went back to the beginning: whether you can have a clergyman give invocations at the beginning of legislative sessions. Congress has paid clergymen and has always from the beginning. Once again, the Court did not have [inaudible at: 25:20] to strike down that practice. But neither did they demand the supposed neutrality principle. It still goes around saying that as though it’s true. Very clearly, it was not true in the past and is not true today. How else can you explain those two cases? You can't.

I don’t know what it is in our legal culture that causes us to continue to cling to legal abstractions long after the opinions of the Supreme Court have shown them to be false. It’s by no means a phenomenon reserved to First Amendment jurisprudence. For example, under the Fourth Amendment, we continue to insist -- and we say this to our [inaudible 26:16] -- that the general rule is that a search and seizure is unconstitutional unless a warrant is first obtained.

I don’t know where that rule comes from. We made it up. And as our opinions show, there are now exceptions to that supposed rule which include exigent circumstances searches, administrative searches, car searches, stop and frisk searches, searches incident to arrests, school searches, searches of employee offices, et cetera, et cetera. Quite obviously, it would be a much more accurate description of the law to say, "It’s generally required to search a home and sometimes required elsewhere." But it sounds so much better to say, “What a great country we are. You can’t search anybody without a warrant.” I don’t know why we are delighting in this braggadocio, just [inaudible at 27:28] about something that simply isn’t true.

Well, I wanted to come back -- remember what I told you to think about. “Some men see things as they are and say ‘why,’ I dream things that never were and say ‘why not.’” That seems to be what my Court does [inaudible at 28:01].

Now, what you ought to know before you embrace that wonderful motto...many think that it is a "knockoff" -- I think that’s the modern term for unattributed copy -- of a line from a relatively obscure play of George Bernard Shaw. Well, you can judge for yourselves. Shaw's line, contained in a play called Back to Methuselah, goes as follows: “You see things; and you say 'Why?' But I dream things that never were; and I say why not.”8

Shaw, it seems, had the good sense to know that this motto is a tempting but not really a sound guide for human action. You see, in Back to Methuselah, the lines were spoken by a serpent and addressed to a woman named Eve.


1 See, for example, Robert Kennedy's Address of 18 March 1968 at the University of Kansas. An approximation of the phrase had been used earlier by President John F. Kennedy in his address to the Irish Parliament, and, later, and memorably, by Edward M. Kennedy at the very end of his eulogy for Robert F. Kennedy.

2 See Wikipedia entry on Zorach v. Clauson; see full opinion by Douglas.

3 The full quotation: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions."

4 See, for example, Wikipedia entry on the U.S. Supreme Court' ruling in Abbington v. Shemp. On religion neutrality, Justice Clark, citing Justice Black in Torasco v. Watkins, writes: "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.'" Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." [emphasis added]. Concurring, and perhaps most directly, Justice Goldberg writes: "The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief. [emphasis added]

5 Strictly quoted, President Bush stated: "God bless America" (not "God bless the United States")

6 Attribution unverified

7 There is some conflation here between the language used in the original draft of Jefferson's bill entitled the Virginia Religious Freedom Act  and the language of the Virginia Statute of Religious Freedom passed into law by the Virginia General Assembly. The original draft beginning with the words "Well aware that, Almighty God...." were were removed by Senate amendment on 16 Jan. 1786 and replaced with "Whereas, Almighty God...." (Source: http://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0082#TSJN-01-02-0224-fn-0001).

8 Accurately quoted; see the entire text of Back to Methuselah

Image of Justice Scalia Source: NOLA.com

Image of Jefferson Tombstone Source: https://nyheroes.files.wordpress.com

Transcription Note: Principal transcription work by South Transcription Unlimited, Inc. | www.southtranscription.com | info@southtranscription.com | (+63) 920.921.8709. Supplementary transcription work and editorial oversight by Michael E. Eidenmuller.

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