October 4, 2014 by David K. Sutton

Justice Scalia Says There’s No Constitutional Church-State Separation

Speaking to a friendly, like-minded audience this past Wednesday, Supreme Court Justice Antonin Scalia said there is no wall of separation between church and state.

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion,” Justice Scalia said.

Ah, see, he’s trying to parse this in a way where he cannot be trapped. Because he is actually acknowledging that there is a separation of church and state, only according to Scalia, it doesn’t mean what you think it means. Bravo to Scalia for phrasing it this way, because the simple truth is that Thomas Jefferson is the reason we have the “church-state” phrase in the first place, cited in many past Supreme Court rulings, upholding the intent of the Founders of the Constitution. And it’s not a mistake that religious doctrine and references to God and/or creator are absent from the Constitution.

Jefferson’s metaphor of a wall of separation has been cited repeatedly by the U.S. Supreme Court. In Reynolds v. United States (1879) the Court wrote that Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.” In Everson v. Board of Education (1947), Justice Hugo Black wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.”

The Supreme Court is the final word on what is or is not constitutional. As of 2014, there most certainly is a wall of separation between church and state, as a constitutional matter, as ruled by many Supreme Court rulings.

In his distortion of the meaning of church-state separation, Scalia has other ideas.

“That’s a possible way to run a political system. The Europeans run it that way,” Justice Scalia said. “And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”

This is amazing to me! We don’t need a statute, we have the constitution, and it’s numerous Supreme Court interpretations. But this nugget of knowledge is apparently unsatisfactory to Scalia.

Okay, but I must admit, Scalia is actually hitting on something that is kind of true. Anything that is considered constitutional or unconstitutional is based on court rulings, and the Supreme Court has the final word. So in that sense, Scalia is entitled to his opinion. He believes the constitution does not guarantee that the “government cannot favor religion over nonreligion.” But that is only his opinion. And the Supreme Court has ruled counter to Scalia’s opinion many times. But the Supreme Court is also free to rule in opposition at a later date, more on that in a moment.

So Scalia has his opinion, as does everyone else, as does every Supreme Court justice. We hope they have informed opinions of course, and in fact, we’d like to say they are experts in their chosen (although in this case appointed) profession. However, let’s not confuse court opinions with scientific fact. Constitutional experts base their informed opinions on ideas, whereas scientific experts base their theories on evidence, observation, testing, and peer review.

When we are talking about what is or is not constitutional, we are talking about ideas, not provable facts. In addition, the Constitution doesn’t get into great detail on any specific topic, so any interpretation of the Constitution will be built upon mountains of previous interpretations, which could all simply be considered opinions in each single situation. And we hope these opinions are based on good intentions and supporting references.

So, Scalia can have his opinion, but until the Supreme Court on which he serves rules otherwise, it is a fact that there is indeed a church-state separation, as previously ruled by the Supreme Court. And what is or is not constitutional has less to do with that document, and more to do with the interpretation of the Supreme Court. Again, it is the Supreme Court that has the final say. And it’s when you come to that understanding that you realize how simultaneously important and unimportant that document we call the Constitution really is.

Look no further than alcohol prohibition, and you can see how seemingly arbitrary the notion of constitutionality can be. First alcohol was legal, then it was illegal like other drugs, and not only illegal, but unconstitutional. Then, after a decade, the Twenty-First Amendment was repealed and alcohol was legal again, but as for those other drugs? Still illegal, but maybe not unconstitutionally so. This is seemingly random when viewed out of context, but based upon contemporary thoughts and ideas of the time, it could be called “informed” opinion.

So now we return to my previous statement that the Supreme Court could overturn church-state separation, because yet again, they are the final word. And this is why I believe constitutional democracies are possibly more fragile than what we might believe them to be. Because constitutional democracies are not protected from erosion because of that original document. It takes unending maintenance and care by thoughtful people, of which, Scalia is not, because he is still waiting for his membership papers to be notarized. But hold on, that’s just an idea too!

If Scalia is true to himself, when he considers himself to be an originalist, then he clearly is ignoring a lot of originalist evidence and Supreme Court precedent when he formulates his many (unofficial and official) opinions, including this latest one. Scalia too often operates within the parameters of the “absurdity doctrine,” overruling common sense in favor of original intent interpretations, often colored by prejudice.