What the Death of Justice Antonin Scalia Means for Religious Liberty
The staunchly Catholic U.S. Supreme Court justice was known for his acidly conservative opinions, but ultimately, he prioritized the Constitution over the Church.
EMMA GREEN 12:01 PM ET
“How can the Court possibly assert that ‘the First Amendment mandates governmental neutrality between … religion and nonreligion’?” the U.S. Supreme Court Justice Antonin Scalia wrote in 2005, arguing that two Kentucky counties should be able to display the Ten Commandments in their courthouses. “Who says so? Surely not the words of the Constitution.”
This moment, with Scalia’s trademark snark, nicely sums up the paradox of how his religious views influenced his Supreme Court career. The justice, who died Saturday, consistently argued that the United States is fundamentally religious, meaning that the government shouldn’t have to avoid religious displays—nativity scenes on public property, prayers at townhall meetings, and the like. His Roman Catholic faith often seemed to lurk in the background of his opinions, especially in cases involving abortion and homosexuality. But above all, he was committed to a literal, originalist interpretation of the Constitution, along with strict attention to the texts of federal and state laws. His views didn’t always align with those of the Church, and he didn’t always side with people making religious-freedom claims.
Depending on how the nomination and confirmation process unfolds in the coming months, faith could be an important factor in who gets picked to be the next Supreme Court justice. But there won’t be a tidy intellectual spot for this person to fill. Scalia’s legacy on religious and social issues is complicated—in defiance of his reputation as the Court’s most stalwart conservative Catholic.
To be sure, he had this rap for a reason. “The Court has mistaken a Kulturkampf for a fit of spite,” he wrote in his 1996 dissenting opinion to Romer v. Evans, which struck down a Colorado constitutional amendment that prohibited protections for gay people. And “to portray Roe as the statesmanlike ‘settlement’ of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian,” he wrote in his 1992 dissent in Planned Parenthood v. Casey, in which the Court upheld certain Pennsylvania restrictions on abortion but did not overturn Roe v. Wade. These were cases where “his faith and his jurisprudence coincided,” said Ira Lupu, a professor emeritus at the George Washington School of Law. Even in opinions related social issues like homosexuality or abortion, Lupu said, Scalia’s writing focused on his pet issues of judicial overreach and fidelity to the Constitution. But it had “a nasty edge to it. And this is what gets him quoted.”
http://www.theatlantic.com/politics/archive/2016/02/what-scalias-death-could-mean-for-religious-liberty/462759/
