Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?

• Author: Michael Newdow
• Pages: 409-501

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QUESTION TO JUSTICE SCALIA: DOES THE ESTABLISHMENT CLAUSE PERMIT THE DISREGARD OF DEVOUT CATHOLICS?

MICHAEL NEWDOW

TABLE OF CONTENTS

I. Introduction 411

II. Does the Text of the Establishment Clause Allow the Government to “Disregard” Any Lawful Religious Ideology? 413

III. Did Justice Scalia Fairly Choose and Analyze “Tradition” to Support His Claims? 427

A. Justice Scalia’s Historical “Fact” #1: George

Washington Added “So Help Me God” to His Inaugural Oath 429

1. Analysis of Justice Scalia’s Approach 429

2. A Counter to Justice Scalia’s Approach 434

B. Justice Scalia’s Historical “Fact” #2: Since the

Days of John Marshall, the Supreme Court’s

Opening “Prayer” Has Included, “God Save the United

States and This Honorable Court” 437

1. Analysis of Justice Scalia’s Approach 437

2. A Counter to Justice Scalia’s Approach 440

C. Justice Scalia’s Historical “Fact” #3: The First

Congress Instituted Legislative Prayer 443

1. Analysis of Justice Scalia’s Approach 443

2. A Counter to Justice Scalia’s Approach 446

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D. Justice Scalia’s Historical “Fact” #4: At Congress’s

Request, George Washington Proclaimed “A Day of

Public Thanksgiving and Prayer” to “Almighty God” 449

1. Analysis of Justice Scalia’s Approach 449

2. A Counter to Justice Scalia’s Approach 451

E. Justice Scalia’s Historical “Fact” #5: The Northwest

Territory Ordinance of 1787 Spoke of “Religion,

Morality, and Knowledge, Being Necessary to Good

Government and the Happiness of Mankind” 454

1. Analysis of Justice Scalia’s Approach 454

2. A Counter to Justice Scalia’s Approach 460

IV. The Establishment Clause Permits the Disregard of Devout

Catholics 466

A. The Pre-Colonial Development of Anti-Catholicism 467

B. Anti-Catholicism Among the Early Colonists 472

C. Anti-Catholicism in the Founding Era 478

D. The Persistence of Anti-Catholicism 488

V. Conclusion 499

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It behoves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own.

- Thomas Jefferson¹

I. INTRODUCTION

In June 2005, Justice Antonin Scalia contended that “the Establishment Clause . . . permits the disregard of devout atheists.”²This statement is extraordinary inasmuch as it appears to reverse an inexorable—albeit, at times, wandering—trend toward true equality.³Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford⁴), gender (e.g., Bradwell v. State⁵) and national origin (e.g., Korematsu v. United States⁶), those prior odious decisions are no longer good law.⁷In his McCreary County v. ACLU of Kentucky⁸dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality in the one constitutional arena where the

Copyright © 2009, Michael Newdow

¹Letter from Thomas Jefferson to Benjamin Rush (Apr. 21, 1803), in 8 THE WRITINGS OF THOMAS JEFFERSON, 1801–1806, at 224 (Paul Leicester Ford ed., New York, G.P. Putnam’s Sons 1897) (emphasis added) [hereinafter JEFFERSON, 1801–1806].

²McCreary County v. ACLU of Ky., 545 U.S. 844, 893 (2005) (Scalia, J., dissenting). Justice Scalia was joined by former Chief Justice Rehnquist, Justice Thomas, and Justice Kennedy. Id. at 885. However, Justice Kennedy did not join the portion of Justice Scalia’s dissent that contained these words. Id. at 885–93.

³See United States v. Virginia, 518 U.S. 515, 557 (1996) (“A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.”).

⁴60 U.S. 393, 465–66 (1856).

⁵83 U.S. 130 (1872).

⁶323 U.S. 214, 223–24 (1944).

⁷See, e.g., Brown v. Board of Education, 347 U.S. 483, 495 (1954) (Dred Scott); United States v. Virginia, 518 U.S. 515, 531–32 (1996) (Bradwell); Adarand Constructors
v. Pena, 515 U.S. 200, 215 (1995) (signaling the Court’s approval of Congress’s agreement with the Korematsu dissenters’ positions and noting that the 1944 opinion “inexplicably” relied on discriminatory principles).

⁸545 U.S. 844 (2005). In McCreary, the Supreme Court decided whether the government could post the Ten Commandments on courthouse walls. See id.

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Supreme Court had not previously proclaimed such a manifest animus toward minorities—religion.⁹

With his reputation for a prodigious intellect,¹⁰one might infer that Justice Scalia rendered his McCreary dissent based on scholarly jurisprudence. On the other hand, as the Justice has written, “Intellectual honesty does not exclude a blinding intellectual bias.”¹¹As the framers

were well aware, this is especially true when religion is involved.¹²Thus, an individual’s spiritual views may at times affect the academic inquiry of even the most gifted intellectual. Perhaps that explains why a justice becomes indignant when his own religious view (that God exists),¹³is left

unsupported by government,¹⁴but has no qualms contending that government may “disregard” those who adhere to an alternative religious philosophy. Accordingly, this article considers whether objective scholarship or personal religious bias underlay the Justice’s argument.

In delving into this question, the article is divided into three parts. The first considers the text of the Establishment Clause: “Congress shall make no law respecting an establishment of religion . . . .”¹⁵Specifically, the wording of this phrase is analyzed to determine the validity of Justice Scalia’s contention that Atheists may be disregarded.

Because Justice Scalia, in McCreary, used historical events to support that contention,¹⁶the second part examines those events. The analysis is

⁹To be sure, the Court has previously made such statements as “we are a Christian people.” Holy Trinity Church v. United States, 143 U.S. 457, 471 (1892). Nevertheless, as “arrogant” as that statement may be (“[T]he Court takes a long step backwards to the days when Justice Brewer could arrogantly declare for the Court that ‘this is a Christian nation.’ Those days, I had thought, were forever put behind us . . . .” Lynch v. Donnelly, 465 U.S. 668, 717–18 (1984) (Brennan, J., dissenting) (citation omitted) (quoting Holy Trinity Church, 143 U.S. at 471)), the Court never suggested that other religious belief systems could be “disregarded” under the terms of the Constitution.

¹⁰See S. EXEC. REP. NO. 19 (1986); 132 CONG. REC. S12,779 (1986).

¹¹Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 127 S. Ct. 1534, 1556 (2007) (Scalia,
J., dissenting).

¹²Id.

¹³See MARTIN GARBUS, COURTING DISASTER: THE SUPREME COURT AND THE

UNMAKING OF AMERICAN LAW 548–49 (2002) (labeling Justice Scalia as “[a] devout

Catholic”).

¹⁴See Locke v. Davey, 540 U.S. 712, 733 (2004) (Scalia, J., dissenting) (“Let there be no doubt: This case is about discrimination against a religious minority.”).

¹⁵U.S. CONST. amend. I.

¹⁶McCreary County v. ACLU of Ky., 545 U.S. 844, 884–94 (2005) (Scalia, J., dissenting).

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driven by questioning the fairness with which these events were selected and whether they really stand for the proposition he claims.

Finally, the third and last part applies Justice Scalia’s brand of analysis to his own religion: Catholicism.¹⁷The analysis shows that the United States of America was born of a literal hatred for Catholics.¹⁸Thus, does the Establishment Clause, under his approach, permit the disregard of the faith to which he adheres? If so, then his espousal of the view that Atheists can be “disregarded,” while not espousing the same view against Catholics, may be nothing more than a marker of the Framers’ wisdom in recognizing the immense power of religious prejudice.

II. DOES THE TEXT OF THE ESTABLISHMENT CLAUSE ALLOW THE GOVERNMENT TO “DISREGARD” ANY LAWFUL RELIGIOUS IDEOLOGY?

Perhaps no member of the Supreme Court is more associated with “textualism” than Justice Scalia. Although the legal field universally concurs that statutory analysis should always begin with the text,¹⁹Justice Scalia’s position that he is “inclined to adhere closely to the plain meaning of a text,”²⁰even in the face of apparently contrary legislative history,²¹is somewhat unique. In fact, his Supreme Court brethren have characterized him as believing “that we have a duty to enforce the statute as written even if fully convinced that every Member of the enacting Congress, as well as the President who signed the Act, intended a different result.”²²

Despite the foregoing, Justice Scalia is also the foremost “originalist,”²³which gives textualism less primacy in the realm of constitutional interpretation. In other words, he advocates for “the consideration of an enormous mass of material . . . a task sometimes better

¹⁷See GARBUS, supra note 13.

¹⁸See discussion infra Part IV.

¹⁹Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 127 S. Ct. 1534, 1552 (2007) (Scalia,
J., dissenting); see also United States v. Gonzales, 520 U.S. 1, 4 (1997) (stating that the first step to interpret a statute is to analyze the text).

²⁰Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1184 (1989).

²¹See, e.g., United States v. Estate of Romani, 523 U.S. 517, 536–37 (1998) (Scalia, J., concurring) (noting how he has “been critical of the Court’s using the so-called legislative history of an enactment (hearings, committee reports, and floor debates) to determine [a text’s] meaning”).

²²Conroy v. Aniskoff, 507 U.S. 511, 518 n.12 (1993).

²³See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 passim (1989).

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