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Supreme Court Justice Antonin Scalia Takes Aim at the Separation of Church and State (13145)

An informal occasion at Washington’s Catholic Information Center yields an engaging portrait of the deeply Catholic and predictably acerbic justice.

10/14/2012 Comments (29)

WASHINGTON — U.S. Supreme Court Justice Antonin Scalia looks around the packed room in the Catholic Information Center (CIC) as if to estimate its temper.

He begins his address quoting a Frenchman: “‘France is a country …’” A faint anticipatory chuckle ripples over the crowd, spilling out into the doorway where the late-comers stand.

The justice corrects himself and adopts the appropriate accent. “‘Frahhhnce eez a cohhntry with two religions and three hondred cheeses. The United States eez a country with three hondred religions and two cheeses.’” He pauses for a moment and resumes his native inflection. “I always have trouble remembering the second cheese.”

The crowd laughs — neither for the first nor for the last time that evening.

Justice Scalia knows how to amuse his audience, even from behind the intimidating height of the Supreme Court bench. The atmosphere at the CIC on a Wednesday night in October is more relaxed and intimate than that of the court (despite the wire-eared security terriers present for Scalia’s protection), but the subject is as serious as any the court rules on: the separation of church and state.

It is a subject that Scalia, never one to shy away from the controversial, chose himself. The event was billed as “An Evening With Justice Antonin Scalia,” and the ostensible purpose of his presence at the CIC was to sign copies of his new book, Reading Law: The Interpretation of Legal Texts.

Scalia could have spoken on the book, on dry-as-dust theories of law; he could have touched on his family life (52 years of marriage, nine children and 33 grandchildren); he could have told jokes all evening, and no one would have gone home disappointed. He chose to speak on religion and politics.

The separation of church and state is, Scalia noted, “a subject that has been particularly good for Americans and that Americans have been particularly good at.”

The American skill in distinguishing the two is due in part to the diversity of American religious views, the “300 religions,” which makes separation of church and state “more politically needful in the United States than elsewhere.” It is also due, Scalia added less happily, to the growing decline in religiosity. “If one is a skeptic, it is easy to believe that one’s religious beliefs should not be imposed. … After all, one might be wrong!”

Scalia posited that America’s growing skepticism is what enables the Supreme Court’s current, unique religious composition.

“The fact that the Supreme Court consists of — what now? — six Catholics and three Jews: I would like to believe that it’s because of more religious toleration, but I think it’s actually because of indifference.”

Scalia went further, drawing on the evidence of the Gospels to support the notion that the church and state hold authority in separate realms. Christ’s words and actions, he said, make it clear “that the state is not the source of man’s power, nor of his religion. … Its focus should not be with the hereafter, but with the here: ensuring a safe, just and prosperous society.”

In contrast, the Church has the higher task of providing man with “the most important goods,” he said, the first and foremost being eternal salvation.

Practically speaking, Scalia described the Christian’s role in the church and the Christian’s role in the state as overlapping, but not identical. Christian charity is a duty, but not one that the state exists to fulfill: “To fix upon good government as the only manifestation of Christian charity is giving my business more credit than it deserves.”

Scalia was quick to say, however, that the distinct roles of church and state do not mean that the one cannot influence the other; in this regard, “our constitutional law has been greatly distorted. … [The notion that] our Constitution forbids anything that favors religion over non-religion is a lie.”

Religion always has and always will influence politics. “From abolition to prohibition,” he said, “the secular beliefs that Americans have voted for, or indeed have died for, have often been … [based] on religious beliefs.”

At the same time, as it influences civil affairs, Christianity commands citizens to offer obedience to lawful civil authority. It is a concept with which some Americans are uncomfortable, Scalia said. “We are a nation largely settled by those fleeing from political regimes, and there is in our thinking a deep strain that looks upon government as a necessary evil. … [But] government has a moral claim, that is, a morally prescribed claim on our obedience.”

This raised the inevitable question: What happens when a Catholic’s morality and the demands of his life as a citizen come into conflict?

Scalia’s answer was characteristically blunt. “You have to decide if this is a thing that God has commanded, and if it is, you have to ignore Caesar. Go to jail; go be executed. … But be careful how you decide!”

And what of Scalia himself? Does he see his Catholicism and his office ever coming into conflict? Does he see dangers for the Church in the soon-to-be-enacted HHS mandate? What are the merits of the upcoming religious-liberty case in which the Becket Fund for Religious Liberty is legally challenging the HHS mandate on behalf of eight religious organizations that oppose it?

The last question is the one to which everyone wants an answer. It is also a question on which Justice Scalia had better not speak. Supreme Court justices are prohibited from expressing opinions on upcoming cases under penalty of recusal, much as jury members are not allowed to discuss the cases on which they sit.

But the question is asked; and Scalia hears it thoughtfully, and then consults his former clerk in feigned confusion. The ex-clerk, who introduced Scalia at the beginning of the talk, briefly describes the Becket Fund case; and a twinkle comes into Scalia’s eye, as if he had never heard of such a thing before. He looks back at the questioner, and says gravely, repeating his clerk’s advice:

“It is best for me not to touch those issues.”

Still, for those looking for a solution to the mandate, his words that evening contain a morsel of advice:

“My message is: Don’t place your hope in politics,” Scalia said. “That is not your salvation. … Certainly, good government should abide by the natural law. And, as the Catholic Church teaches, natural law prohibits certain things, such as abortion, that Catholics in public life can oppose.”

At the same time, Scalia insisted that being a Catholic and an American should not be a matter of indifference: The two things are very much complementary: “It seems to me that the faith’s message on [religious liberty] is essentially the same [as the Constitution’s]. … State coercion is wrong precisely because it impinges upon man’s free will … the respect in which he is made in the image of God.”

Sophia Mason is a graduate student at The Catholic University of America.

She blogs at  The Girl Who Was Saturday and lives in Arlington, Va.

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