Scalia, J., Dissenting: A Fragment on Religion

By Carter, Stephen L. | The Yale Law Journal, April 2017 | Go to article overview

Scalia, J., Dissenting: A Fragment on Religion


Carter, Stephen L., The Yale Law Journal


[Author's Note: This unpublished opinion was supposedly found among the papers of the late Justice Antonin Scalia. I cannot say with authority that the supposition is true. Whatever its source, the opinion is plainly a draft. The argument contains certain doctrinal inconsistencies, and the prose does not entirely possess the stylishness for which the late Justice was known. Probably additional flourishes were to be added later. In addition, although there are references to the majority's argument, there is no Supreme Court opinion that matches up with the dissent's criticism. It is not clear whether the draft was even connected to any particular case-or, as I say, whether it is authentic at all. From internal evidence, the dissent appears to assume that the petitioners are challenging certain religious accommodations, that the government respondents are defending them, and that the intervenors argue that the accommodations do not go far enough. But I am only guessing. I am grateful for the research assistance of Sam Adkisson. Copyright 201/ by Stephen L. Carter.]

JUSTICE SCALIA, DISSENTING.

The Court today continues its reckless assault on the principle of religious freedom enshrined in the First Amendment. Because I believe that the Constitution contains no more important clause, and because I consider every encroachment on religious liberty an encroachment on democracy itself, I dissent.

(I)

Our jurisprudence on the religion clauses of the First Amendment is famously opaque. But instead of clarifying the law, the Court today makes itself the obfuscator of last resort. (1) Without ever offering a serious argument, the majority today holds unconstitutional a set of seemingly reasonable accommodations of religion that appear in the laws of a number of states. True, the accommodations before us are controversial, and they even provoke in some corners considerable ire, but neither of these concerns is of the mildest constitu-constitutional moment. Appointment to the Supreme Court of the United States is not the same as entrance in a popularity contest. No sane citizen would want things any other way. (2)

Today's decision is but another in a long line of cases in which this Court fundamentally misunderstands the Establishment Clause. (3) The clause, as I have argued in the past, was never intended to prevent the Government from conferring on religious persons and organizations a reasonable set of privileges not available to the irreligious. (4) On the contrary: "Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality." McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005) (Scalia, J., dissenting). Of course the Government is free in most cases to choose not to grant preferential treatment to religion. The question is whether a "mandatory choice... has been imposed by the United States Constitution." Lee v. Weisman, 505 U.S. 577, 645 (1992) (Scalia, J., dissenting). The only sensible answer is no.

The Government can and does treat religion as special, because the American people can and do treat religion as special. The state may not discriminate among religions, and a favor available to one must be made available to all. (5) Accommodations of the sort at issue today may be said to encourage religion in the sense that they reduce the cost to the believer of believing. But a state can make a rational judgment that it is better off with a larger rather than a smaller number of religious believers, as long as it manifests an indifference to which religion they believe.

The majority in its Establishment Clause jurisprudence has not quite become yet another "ad hoc nullification machine," Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part), but that is the worrisome direction in which we may be moving. …

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