Scalia Goes After Atheists and Minority Religionists
Statement by Annie Laurie Gaylor, Co-President
The Supreme Court’s contradictory decisions yesterday on the constitutionality of Ten Commandment markers on public property, instead of resolving three decades of legal disputes, serve only to confound the public, foster case-by-case mischief, and ensure continuing legal battles.
What is the “reasonable observer” to make of twin decisions reaching opposite conclusions? While the general consensus is frustration and bewilderment, far more is at stake than an unwelcome future of messy litigation.
For freethinkers, our protection under the First Amendment has been threatened. In Justice Scalia’s venomous dissent in the Kentucky case, he made the breathtaking assertion that “the Establishment Clause permits this disregard of polytheists . . . just as it permits the disregard of devout atheists.” Government, he wrote, may favor religion “over irreligion.” This from the pen of the man being widely promoted as our next Chief Justice!
In Chief Justice Rehnquist’s decision permitting a Ten Commandments marker to remain on the grounds of the Texas Capitol, he deliberately planted a number of constitutional booby traps, by ruling:
“Our institutions presuppose a Supreme Being.”
“Simply having a religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”
Chief Justice William Rehnquist’s probable swan song approving the posting of the Ten Commandments at the seat of state government will leave his reactionary fingerprints on Establishment Clause law far into the future.
Rehnquist laughably referred to the bible marker as a “passive monument.” (Has anyone ever heard of an “active monument”?) Allegedly, this display was approved because it had the secular purpose of commending the Eagles for their “efforts to reduce juvenile delinquency” (by posting and erecting Ten Commandments monuments).
As Stevens’ dissent pointed out:
“The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor.”
And, as the Foundation’s amicus brief pointed out–if Texas wants to commemorate the Eagles Club, it ought to have placed a monument to the Eagles, not to Moses!
The contrary decisions expose the shaky foothold civil libertarians have on the Supreme Court. The defection of Stephen G. Breyer to the “dark side” of the Court in the Texas ruling was an unexpected blow.
Most offensively, Breyer echoed Rehnquist’s dismissal of the rights of plaintiff Thomas Van Orden, by jeering that no one had ever complained before in the 40 years that the marker had been up.
Untrue! The Freedom From Religion Foundation wrote its first letter of complaint to a Texas governor over the marker (on behalf of state complainants) in the late 1970s, followed by subsequent letters by us and Texas members as recently as the late 1990s. These insulated justices evidently have no idea how expensive, how complicated and how intimidating state/church lawsuits are, if they can imagine the typical citizen concerned about a violation can readily file suit every time they encounter one!
But there are silver linings to the Texas decision, most notably that the decision was a plurality–only four justices signed it. While siding with the theocrats, Breyer stopped short of putting his name on Rehnquist’s requiem to the Establishment Clause. That technically makes the Texas case weaker than the Kentucky 5-4 decision against government-sponsored decalogs.
The Texas ruling could have been worse. It could have given a blanket green light for installation of Mosaic laws on public lawns throughout the nation. No, the ruling will make those busy-busy ultra right-wing Christian legal bullies work just a tad bit harder to defend current bible tombstones, or erect new biblical markers. (At least they’ll have to count monuments present on a targeted government spot before baring their legal fangs.)
The Kentucky case is far better than a silver lining. Surely we can thank the specter of Alabama’s out-of-control former chief justice, Roy Moore, for influencing the Supremes to nix Ten Commandments displays inside courthouses (with or without “other historic documents”).
Solace can also be found in the solid scholarship and passionate defense of the wall of separation by Stevens, O’Connor (“we do not count heads before enforcing the First Amendment”) and Souter.
Stevens and Souter thoroughly debunk the Christian-nation myths planted in Rehnquist’s 3-page laundry-list of so-called governmental “acknowledgments” of God and the Ten Commandments.
The trio also championed the rights of nonadherents and minority viewpoints.
“The touchstone of our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion,” wrote Souter, in his majority Kentucky decision.
“Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside the First Amendment’s protections. The Religion Clauses . . . protect adherents of all religions, as well as those who believe in no religion at all,” wrote O’Connor, in her concurrence.
But it took Stevens, the most venerable member of the Supreme Court, to truly get to the heart of the matter:
“The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message:
“I AM the LORD thy God.
“Thou shalt have no other gods before me. . . .
“The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the ‘Judeo-Christian’ God.”
Stevens sadly observed:
“God, as the author of its message, the Eagles, as the donor of the monument, and the State of Texas, as its proud owner, speak with one voice for a common purpose–to encourage Texans to abide by the divine code of a ‘Judeo-Christian’ God. If this message is permissible, then the shining principle of neutrality to which we have long adhered is nothing more than mere shadow.”
As Souter wrote for the majority in the Kentucky case:
“Today’s dissent . . . apparently means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty.”
Freethinkers who honor the First Amendment: get thee to thy keyboards and compose a letter to the editor about the unsuitability of Scalia, a latter-day Torquemada, for Chief Justice.
