If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause in the context of governmental religious expression neither as a mandate for equality, nor as a vehicle for protection of the minority against the tyranny of the majority, but rather as a mechanism for protecting the majority from the inconvenience of having to respect the rights of the minority. And not just that: on Justice Scalia's view, it appears that the Establishment Clause affords greater protection only to the majority religious outlook (Judeo-Christianity) that was prevalent at the time of the framing. If ever the tables are turned, and the practitioners of other religions (or of no religion) achieve majority status in some communities, the Establishment Clause will not extend the same rights and powers to them that it extends to the adherents of Judeo-Christianity. To Justice Scalia, biblical monotheism is and always shall be the preferred religion of the American Constitution. This Article critiques Justice Scalia's theory on three principal grounds. First, it argues that Justice Scalia's reasoning is based on a misguided conception of inclusiveness and of minority rights, wrongly suggesting that an equality norm that protects approximately eighty-five percent of Americans, at the expense of the other fifteen percent, is somehow constitutionally acceptable. Second, it argues that Justice Scalia's defense of his rule on the ground of a perceived need for doctrinal consistency rings hollow, both because his own rule manifestly does not achieve the consistency that he seeks, and because it is misguided to insist, in the name of consistency, that the Court's traditional mandate of neutrality in religious matters is somehow discredited by the Court's pragmatic refusal to immediately extend it to the full extent of its logical reach. Finally, this Article argues that Justice Scalia's rule cannot be defended on originalist grounds, because although it aligns almost perfectly with the political preferences of the religious right, it is both theoretically bankrupt and demonstrably not mandated by, nor even supported by, the historical evidence of the original meaning of the First Amendment on which it is purportedly based. In that respect, Justice Scalia's dissent stands as a stark example of the inability of originalism to produce in practice - even when practiced by its most able disciples - a genuine apolitical constitutionalism.
GW Paper Series
GWU Law School Public Law Research Paper No. 398; GWU Legal Studies Research Paper No. 398
Thomas Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 Nw. U. L. Rev. 1097 (2006).