-240x240.jpg)
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.
Comments
Post a Comment
Good article, but the headline is confusing. Scalia didn’t “take aim” at separation of church and state… he defended it!
This justice is exactly why I will never vote for a “good” catholic.
You can either be a follower of the church or a follower of the constituion, not both. If your beliefs want to make contraception illegal (per Catholic teaching), us heathens will not accept your teaching/law.
If my company leader wants to make my medical decisions, I will not accept that either.
Glad to see the “none’s” are now at 20% of the population (recent pew poll).
Funny story, my son in college mentioned he was an atheist and spent the next hour explaining why a nice guy like him didn’t believe. After the class, the female professor came up and hugged him and said “I’m an athiest too but no one can know it”.
Atheist, the new gay.
All religions are bad. Moderate religions enable the taliban and the WBC.
Justice Scalia is a voice in the Wilderness
Interesting reading.
But I always regretted that Judge Scalia, is supporting the death penalty. It is my opninion that catholics cannot do this.
Kortrijk, Balgium
We Catholics hear it. It is out duty to live according to our moral principles and when we don’t speak up to defend them we are not good.citizens either.
Separation of church and state isn’t in the constitution. A small oversight perhaps? Scalia should have said that an atheistic government has no right to impose its secular beliefs on believers either.
Is it not true that the law was made to protect the church from the state,not the state from the church? Will some one please make a study on this constution. I always heard it was made to protect the church from the state. Obama and the democrates managed to turn everything around their way.
Justice Scalia is a light shining in the darkness. Praise God!
How disappointing.
Articulate and humorous platitudes, from a mediocre mind, in defense of illegality.
The vaunted 1st Ammendement
1 Congress shall pass no law
2 respecting an establishment of religion
3 or prohibiting the free excerise thereof.
In 1790, when the words were written, several states had openly established religions.
So the Ammendemnt does NOT prohibit establishment of religion.
Instead it say federal law has no say, one way or the other.
If Utah wants to make Mormonism their state doctrine, it can.
What the feds cant do, is say anything about what a priest says on the pulpit.
Amazing: Pope Leo XIII gave us an Encyclical Letter dated Feb. 16, 1892ad addressed to the Bishops and Faithful of France, titled: “Au Milieu des Sollicitudes” and he is talking about the French government that is trying to control the Church, and in which he tells us very plainly that this separation is equivalent to the separation of human legislation from Christian and divine legislation and he also goes on to state this is an absurdity!! He also said: “that as soon as the State refuses to give to God what belongs to God, by a necessary consequence it refuses to give to citizens that to which, as men, they have a right; as whether agreeable or not to accept, it cannot be denied that man’s rights spring from his duty toward God.” “Catholics cannot be too careful in defending themselves against such a separation”. This wonderful Pope also had another Encyclical Letter that EVERY Catholic should read, especially those politicians that call themselves ‘catholic’, and this title is “Sapientice Christianoe”-on the Chief Duties of Christians as Citizens, and this was dated Jan. 10, 1890ad. +JMJ+
I have admired Justice Scalia for many years. How may I obtain a signed copy of his book?
Philip
Massapequa NY
I’m afraid the headline of this piece is misleading. Justice Scalia certainly does not “take aim at the separation of church and state”, in this speech or anywhere. Like Pope Benedict XVI, Justice Scalia believes (as we all should) that the freedom fo religion is enhanced when religious and political authority are distinct and “separate.” What he is challenging (correctly) is a mistaken *understanding* of church-state separation, which confuses that important idea with the misguided idea that religious institutions and political ones cannot cooperate in the service of the common good, or with the other mistaken idea that church-state separation requires a religion-free public square.
Scalia can twinkle his eyes at us all he wants, but the fact remains that in the Smith v. Oregon case, he declared that the “free exercise” clause does not permit someone to ignore a law of “general applicability” on the ground that “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)”. The law in Smith prohibited Oregon residents from receiving unemployment benefits if they used illegal narcotics. The plaintiffs in Smith were two members of an Indian tribe who smoked peyote as part of their religion and were denied unemployment benefits as a result. Scalia said it was just fine for deny them benefits because the law against peyote was a law of “general applicability” and did not target the Indians’ religious practice. Likewise, the HHS mandate is a law of “general applicability” because it requires employers who provide health care to include contraception in that health care. The mandate does not target Catholics; it applies to all employers. Therefore, per Scalis, employers cannot claim a First Amendment objection to purchasing such health care.
In reply to Rover Serton:
No one wants to make contraception illegal. We, who do deeply believe in the teachings of our Faith, simply do not want to be forced to pay for something in violation of our conscience. Those who want to use contraceptives can still do so provided they pay for them (or go to Planned Parenthood and get them free—they delight in handing them out). It is as simple as that. Why is it that those who belong to the secularist “religion” (a religion is a belief) always want to force their “religion” on everyone else?
“If your beliefs want to make contraception illegal (per Catholic teaching)”
What teaching have you read wants to make this illegal?
@Rover Serton
Your post is a complete non sequitur. First of all, the US Constitution is completely silent on the issue of contraception, as it was rarely practiced 230+ years ago. Secondly, as pjd notes, no one is calling for contraception to be made illegal. As such, you are either seriously ill-informed or attempting to deceive. I’ll give you the benefit of the doubt and presume it is the former.
Scalia is a real blessing for the nation. I’m hard pressed to think of a justice in our history who has been so clear thinking, articulate, or consistent in defense of both the Constitution and the Natural Law.
Atheism requires me to believe there is no God… sorry… that’s asking me to have too much faith in the “ism” that is “atheism”. My observations have led me to conclude there must be a higher being - there is no other logical explanation for the universes, the intricacy of a flower,the clock work of the seasons and of each night turning into day. Ask yourself this question… what is more complicated, a jet plane or the human body? Clearly, the answer is the human body. To believe there is no Creator means I must also believe you could take apart a jet plane, lay all of its parts on a tarmac, then throw it all up in the air and expect it to land as a jet ready for flight… not logical and just a wee bit impossible. The human body is so much more complicated as to leave no room for doubt.
@ mary, The Hat Lady, Lucy lee de Cortez (et al.?):
I think the Justice took it for granted that his audience in this circumstance was well-informed enough to be aware of the real nature of the provisio in the Bill of Rights defining the constitutional relationship between Church and State in this country. He is (and everyone listening that evening was) fully aware that “separation of Church and State” is not a phrase from the Constitution at all. He was addressing the issue, one faithful and educated Catholic to many others, and not as a man would address the issue who spoke to his opponents, or people who were confused about the matter at hand.
@ Andy:
You’ll have to talk to Scalia about that. But my (non-expert, non-legal) impression is that the courts in this country general tend to view laws prejudicial to Christian religions differently than they view those prejudicial to non-Christian ones. Depending on your point of view, this may be either a very bad or a very good thing. Personally, as a Christian myself, I like it; AND I think it makes good sense for a country that claims to be based on Judeo-Christian norms—but obviously there will be a minority who disagree.
Also, with regard to your particular example, I would say that there seems to be a difference between a law that prohibits (e.g., you are prohibited from smoking peyote, prohibited from performing animal sacrifice, or prohibited from practicing polygamy) and a law that requires (e.g., you are required to attend Anglican services, you are required to burn incense to Jupiter, or you are required to pay for your employees contraception). I could easily see a judiciary recognizing the latter sort of laws as being much more offensive to religion than the former: to restrain someone from doing what their conscience demands is rarely so offensive as to command them—and publicly!—to violate it.
But that’s just me. The Justice would probably have better reasons than either of those, if he were to say that employers could have that exemption.
Posted by Pol T. Descamps on Monday, Oct 15, 2012 9:22 AM (EST):Interesting reading.
But I always regretted that Judge Scalia, is supporting the death penalty. It is my opninion that catholics cannot do this.
Kortrijk, Balgium”
*******************************
Catholic teaching allows for the death penalty in very rare instances where there would be no other way to protect society.
Response to @Andy: The restraint/command distinction you identify is the very distinction that Scalia said made no difference: the “free exercise” clause does not permit someone to ignore a law of “general applicability” on the ground that the law requires (or prohibits) conduct that his religion prohibits (or requires). The peyote law prohited conduct that the tribal law required, but was constitutional. Complementarily, the contraceptive mandate requires conduct that Catholicism prohibits. We Catholics are in the same Scalia-built boat as the peyote-smoking tribal members.
@Andy, “Likewise, the HHS mandate is a law of “general applicability”
The Religious Freedom Restoration Act and it’s amendments offers exemptions from this kind of law. The rule must be the least restrictive way in which to further the government interest. Providing FREE STUFF that is available for a nominal cost or free now can be accomplished via many methods now used by the U.S. Government. This mandate is a clear attack on religion by secular interests.
Paying a tax—which is what the HHS mandate is—is not a “religious exercise” as defined by the Religious Freedom Restoration Act (RFRA). The RFRA is not going to help us.
All laws impose rules on behaviors that the governing society feels endanger that society. You think that atheists don’t inflict their ideology on the public? I think you skipped a few lessons in modern history. The difficulty is making sure the lawmakers are trained in natural law and have a respect for the dignity of human life. You may remember that when you start defining what human beings have rights and which ones don’t you start killing the ones that don’t. Oh. We already do that. But we only allow mothers to kill their own children. We only allow them to kill their children before they are born.
Thank goodness we have logical, scientific reasons for these things.
Andy,
The act states; “SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
(3)governments should not substantially burden religious exercise without compelling justification.”
The word “tax” is not found in the act of 93 and is not specifically excluded there.
“Taxation” referred to the finding of the SC declaring that the mandate was taxation not commerce regulation.
The Becket Fund is representing many of the plaintiffs, regarding 3 of them it says;
“The Supreme Court agreed to review a challenge to the individual mandate, a separate provision of the universal health insurance reform law that requires individuals to obtain healthcare by 2014. The three lawsuits challenge the government mandate as a violation of the First Amendment of the U.S. Constitution, the Religious Freedom Restoration Act, and the Administrative Procedures Act.”
http://tinyurl.com/bvq7p2f
Many have brought up the subject that Scalia’s talk was all about the separation of church and state - which comes directly from the communist manifesto - . He did talk on that as it has been used by many communists in our country. He did a good job on that issue.
However, it should be said that we as americans should never let these people get by with using it. There was a former leader -either Hitler or Stalin who said “if it is said enough, over and over, people will start believing it”! Many do and use it to defend paganism or against religion.
Let’s also remind them that there never can be a complete separation of religion from our laws, otherwise there could be no penalty against stealing, murder, arson, etc.etc. Let them be a target of one of these religious tenants and they will be the first to bring in a gov. to reprimand the offender.
The separation of church and state in the USA will end soon. I see it ending in my lifetime. Then the Church will take primacy again in the lives of all mankind and laws will be made for a national day of rest and family peace, and the betterment of all. Christian unity will begin again with heretic groups reconciling to the Holy Mother Church, and being welcomed home as the father celebrated the return of the prodigal son. Then peace and prosperity will be proclaimed around the world. We will all go back to a single Christian purpose in daily life. What a joy that will be.
@Andy,
The Oregon legislature made a law concerning general applicability: i.e. narcotics. Narcotics are controlled or illegal substances, and therefore such a law that encourages the populace not to use them is generally applicable due to the rather broad scope of things that are narcotic. Further, the Oregon case does not fall under the 1st Amendment, particularly because the law itself is not religiously motivated. Scalia, being an Originalist, could argue that the purpose of the 1st Amendment was to eliminate laws with the intent to place one religious persuasion (including atheism) above all others: the Oregon statute doesn’t.
The HHS mandate is a horse of a different color because it specifically mentions religious institutions and legally redefines what a religious institution is. The fact that the HHS mandate specifically takes aim at a particular religious persuasion (in a not-so-covert manner) means that it is not “generally applicable”, and falls under the 1st Amendment.
@Kathleen and @Pol T. Descamps:
The Church has universally and uncompromisingly recognized the right of the state to execute criminals. Over the course of the centuries, She has recognized that Capital Punishment is only just under the conditions that 1) it is not out of vengeance, but retribution (commensurate with the crime), 2) it protects the people of that state from further harm from that individual, 3) it seeks to provide as a deterrent from further crime, and 4) the guilt of the criminal is shown beyond reasonable doubt.
Pope John Paul II added that in modern, industrialized, societies, the need for capital punishment was rather diminished, especially given the ability of forensic scientists to provide more definitive proof of innocence or guilt, and the ability to incarcerate violent criminals in a manner that promotes the public safety for long periods of time.
He is talking about the French government that is trying to control the Church, and in which he tells us very plainly that this separation is equivalent to the separation of human legislation from Christian and divine legislation and he also goes on to state this is an absurdity! lawecr.com
Post a Comment
By submitting this form, you give The National Catholic Register permission to publish this comment. Comments will be published at our discretion, and may be edited for clarity and length. For best formatting, please limit your response to one paragraph and don't hit "enter" to force line breaks.
The time period for commenting on this article has expired.