"Mr. Scalia's Neighborhood": A Home for Minority Religions?

Article excerpt

INTRODUCTION

Justice Antonin Scalia may be the most outspoken and persuasive voice of the new conservative majority on the United States Supreme Court. With the departures of Chief Justice William Rehnquist and Justice Sandra Day O'Connor-replaced by Chief Justice John Roberts and Justice Samuel Alito-the strength of Scalia's influence has grown, with some predicting that Scalia "may well command a majority of the Court in the very near future."1

Legal scholars are bracing for a significant shift in the Court's First Amendment Establishment Clause jurisprudence.2 There, Justice Scalia has been a vocal critic for over two decades, arguing for the demise of the much-maligned Lemon test3 and a greater tolerance for religion in the public arena. Scalia's articulate vision in this area could be the opening shots in a "revolution in Establishment Clause jurisprudence-a wholesale rethinking of the constitutional relationship between church and state."4

But Justice Scalia's relentless criticism in this area has caused his critics to fear the worst. Some accuse Scalia-a devout Roman Catholic-of "distorting the historical record in order to shoehorn his personal faith into civic life."5 Others allege he is playing politics by catering to the "agenda of the religious right," and aiding "the Republican Party in its aggressive push to win the support" of key voters.6 Most significantly, Scalia's detractors believe that if his brand of Establishment Clause jurisprudence carries the day, adherents of minority religions will "become potted plants, shunted to the side as marginal citizens. . . . What a scary, un-American place it would be, living in Scalia's America."7

This Article will address these criticisms and examine how "scary" it would be living under Scalia's model of the Establishment Clause. Part I of the Article will briefly introduce Justice Scalia, the controversial cultural icon and acclaimed jurist. Part II will explore the philosophical divide that separates Scalia from his critics. Parts III through V-the lion's share of the Article-will answer the criticisms leveled against Scalia by comparing the freedoms that minority religions would enjoy under Scalia's approach with those under a "separationist" model. The Article will illustrate these differences by visiting a hypothetical' town governed by Scalia's model of the Constitution: "Mr. Scalia's Neighborhood."8

I. JUSTICE SCALIA: POP ICON AND (IN)FAMOUS JURIST

There can be no doubt that Justice Scalia has connected with the American public in a way virtually unparalleled in the history of the Supreme Court. His views on issues such as the judiciary, abortion, and affirmative action have won him the devotion and derision that embody America's modern cultural struggles. His uniquely devoted fans have created websites in his honor, extolling his conservative voice and offering him "worship."9 His most cynical detractors, seeing him as meanspirited and disingenuous, offer Americans the opportunity to express their hatred for Scalia even on the bumpers of their vehicles.10

But whether you love him or hate him, it is crucial to understand Justice Scalia and his influence on the Court in order to evaluate the direction in which he may take the Establishment Clause.

A. Remarkable Man

Antonin Scalia is "the embodiment of the American dream."11 He hails from a strong immigrant Italian heritage.12 An only child, Scalia was born in Trenton in 1936; he later moved from New Jersey to Queens, New York.13 His immigrant father, Eugene Scalia, taught Romance languages at Brooklyn College, while his mother, Catherine-a second-generation citizentaught in public school.14 Raised Roman Catholic, Scalia attended Xavier High School in Manhattan, a premiere all-boys Jesuit school with an emphasis on military preparation.15 At Georgetown University, after study abroad in Fribourg, Switzerland, Scalia graduated first in his class. …