Over the course of the past 13 years Justice Antonin Scalia has emerged as one of the most controversial figures on the Supreme Court. Some claim that he has almost single-handedly pushed the debates concerning the Constitution back to the text itself and away from concerns of social theory and even case precedent.1 “Textualism” has been his watchword, as he has consistently advocated that the words of the Constitution have a range of meaning that is both limited and discernible. To go beyond the words of the text and what they can mean is to violate good constitutional reasoning.
But what do the words of the text of the Constitution mean, and who decides? Moreover, given that those words must be interpreted, what are the presuppositions that are brought to bear on the words of the text? Surely Scalia and other textualists are correct in arguing that we must look at the history surrounding the text in order to discern properly what the words actually mean. There is, however, another element that is also a very important component of textual interpretation: the background beliefs or presuppositions of the interpreter. The argument following concerns one area of judicial interpretation in which Scalia has been most at odds with other members of the Court: the establishment clause of the First Amendment. In this area Scalia brings to bear a particular conception of religion as he interprets the text of the constitution. This is not to say that he is by any means the only justice who brings certain background beliefs into his or her work. Rather, it is a demonstration that such is always the case. There is no completely objective or historical way to interpret a text. The presuppositions of the interpreter always influence the reading, even if the interpreter is Antonin Scalia.
There is no getting around the fact that for justices to decide establishment clause issues, they must have some idea of what religion is; otherwise, there would be no way to tell if it is being established or not. An analysis of the Lee v. Weisman case of 1992 will reveal that Scalia has a certain conception of public religion that plays an important role in how he decides establishment cases.
Lee v. Weisman concerned prayer at a public school graduation ceremony. School principals in Providence, Rhode Island, were permitted to invite local clergy to deliver prayers at the ceremonies. School officials even supplied a pamphlet published by the National Conference of Christians and Jews entitled “Guidelines for Civic Occasions,” which gave instructions for clergy in fashioning “nonsectarian” prayers that would be composed with “inclusiveness and sensitivity” in mind. The prayers were challenged in court by Daniel Weisman, whose daughter Deborah graduated from middle school in 1989.
In a 5-4 decision the court ruled that the practice of Providence was an unconstitutional establishment of religion. Justice Anthony Kennedy wrote the majority opinion in which he relied on what has been called a “psychological coercion” test. Kennedy wrote, “Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers toward conformity, and that the influence is strongest in matters of social convention.”2
Later in his opinion he would summarize the coercive nature of the graduation setting by writing, “The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.”3 Kennedy’s opinion was part of his own campaign to see a coercion test replace the Lemon test as the measure by which the Court decides whether a state practice is an unconstitutional establishment of religion.4
The degree to which Kennedy’s test has not captured the imagination of the separationists on the bench can be seen in the number of opinions the majority issued. Both Justices Blackmun and Souter wrote concurring opinions that were joined by Stevens and O’Connor. So there were three opinions for the five justices who formed the majority.
Scalia wrote the dissenting opinion and was joined by Chief Justice Rehnquist and Associate Justices White and Thomas. His opinion included the tart language he has become known for on the bench. Concerning “psychological coercion,” he quoted a lower court opinion, writing, “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday display . . . has come to ‘require scrutiny more commonly associated with interior decorators than with the judiciary,’” then added in his own words, “But interior decorating is a rock-hard science compared to psychology practiced by amateurs.”5
As to the majority’s view that religion is primarily a private matter, Scalia wrote, “Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.”6
Aside from the barbs thrown at the majority, Scalia’s basic argument was that public prayer is a longstanding tradition in America and should not, therefore, be overturned via an ahistorical reading of the First Amendment. He cited inaugural addresses from George Washington through George Bush, most of which contained prayer, Thanksgiving Day acknowledgments by presidents, chaplains’ prayers in Congress, and even the prayerlike appeal that opens the Supreme Court sessions themselves—“God save the United States and this honorable court.” He charged that the majority opinion singled out only public school graduation prayer in this case and treated it as somehow different from these other types. For Scalia, all these forms of public prayer have been legitimized by the American historical tradition.
Second, while agreeing that the First Amendment did indeed outlaw coercion in matters of religion, Scalia argued that the psychological variety cited by the majority was not in accordance with the historic meaning of coercion as understood by the founders. Historically, coercion meant that one was required under pain of punishment to engage in a certain religious practice. By contrast, no one at the graduation ceremony was required to actually participate in the prayer. Scalia contrasted this to colonial Virginia and other places familiar to the founders in which religious practices were, in fact, established via the use of punishment for nonconformity.
Third, in a surprising concession, Scalia argued that graduation prayers were not even like classroom prayers because students were not actually required by law to attend, and because the setting itself was ceremonial and not educational. Whether Scalia was actually implying here that the classroom prayer decisions—Engel v. Vitale (1962) and Abington v. Schempp (1963)—were decided correctly is unclear.
Scalia introduced his argument by saying that the majority, bereft of historical considerations, had laid waste to “a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer.”7 It was this reference to nonsectarian prayer that gave first hint to Scalia’s conception of public religion, and he would develop this more fully later in his opinion. Clearly, as will be argued below, his view of public prayer is somewhat different from his personal religion. Personally, he is a devoted and devout Roman Catholic, committed to the very specific traditional dogmas of that ancient faith. By contrast, his public religion, as revealed in Weisman, is broad, somewhat amorphous, and very ecumenical. This was illustrated briefly but vividly in his dissent.
First came this notion of nonsectarian prayer. Many mainline and evangelical Protestants, as well as many devout Catholics, have no problem with such prayers. Christians and Jews pray to the same God, they reason, so what’s the complaint? Of course, sectarian Christians recognize that they are the ones who must make concessions when it comes to nonsectarian prayers, for such prayers cannot be uttered in the name of Jesus Christ.8 Such a specific prayer would exclude Jews, and, in fact, the prayer at the Providence, Rhode Island, graduation ceremony was given by a rabbi. While such a concession is considered minimal, it does reveal that when prayer goes public, it gets reshaped and often diluted into its least common denominator form. Such are the exigencies of civil religion in which no one can be left out or offended.9
Scalia, though a devout Catholic, showed that his conception of public religion is broad enough to include nonsectarian prayer. The question isn’t whether such is constitutional or not. Even if Scalia believed that nonsectarian prayer was a bad thing, he might still rule that it is constitutional. He is one justice who believes that many silly things of which he does not personally approve can still be constitutional. Clearly, however, Scalia does believe that nonsectarian prayer is a good thing with a long history, as will be demonstrated below.
The second facet of Scalia’s conception of religion that appeared in his Weisman dissent concerned the value of respect and tolerance for the religion of others. He wrote, “I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter’s interest in avoiding even the false appearance of participation constitutionally trumps the government’s interest in fostering respect for religion generally.”10
Put more simply, he was saying that government has an interest in promoting tolerance among differing religious groups, and that such an interest is at least as important as the dissenter’s desire to avoid the appearance of participation in a public, nonsectarian prayer. Here we have one of the few points on which many liberals would agree with Scalia, and presumably, or hopefully, most Americans would agree that respecting the religion of others is a highly valued thing in this country.
Scalia came back to this theme of tolerance in the closing paragraph of his opinion, and it is here that we see most clearly his conception of public religion and its role in American life. In this paragraph we get the third part of his conception of public religion—that it can and should be used to promote tolerance and respect for various types of faith. Here he not only reminded the public that the founders knew the potential for fearsome religious strife and civil unrest; he also claimed, “And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek.”11 This is a very odd statement for at least two reasons.
First, it is not clear to which founders Scalia was referring. This is a perennial problem when invoking them for support of various religious practices. Surely Scalia is correct that any of the founders who were primarily deists in their faith would have seen little harm and perhaps even some value in various ecumenical practices. For such Enlightenment types, the less specific and sectarian religion was, the better for everyone. Thomas Jefferson and John Adams, for example, would have preferred to reduce religion to basically its moral base, around which believers of all stripes could rally. Theirs was a particularly modern view of religion that emanated from the Enlightenment of the eighteenth century. All the various sectarian doctrinal disagreements were much ado about trivial matters as far as they were concerned.
But few traditional believers of Jefferson’s day would have agreed that Americans of various denominations should pray together in order to foster toleration and affection for each other’s faiths. This is especially true when one thinks of Protestant-Catholic relations. Virtually no orthodox Protestant in the days of the founders would have approved of praying with Roman Catholics. Protestants generally believed that the Catholic Church was “the whore of Babylon” mentioned in the book of Revelation. During the early stages of the most recent presidential race, Bob Jones University (BJU) was roundly criticized by the media for harboring such views, and presidential candidate George W. Bush was taken to task by both the media and his primary opponent just for giving a speech at BJU. In the days of the early republic, however, only those who had jettisoned orthodox Christianity would have supported nonsectarian prayer that included Protestants and Catholics, let alone Jews.
Second, in this same concluding paragraph, Scalia went even further in defining, at least implicitly, a rather modern and liberal notion of religion. He wrote, “Needless to say, no one should be compelled to do that [join in prayer together with those from other faiths], but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated.”12
For Scalia, the state had done society a service by promoting and encouraging ecumenical religious practices. Here we see most clearly not only that Scalia has a particular view of religion, but also that he assumes it to be normative. His particular view is that ecumenical religion is a good thing because it brings Americans together and, therefore, helps reduce the likelihood of religious division and social unrest that so concerned the founders. But is ecumenical religion the only, best, or normative form of faith? And even if it is considered so by many, should the state be fostering it?
While they may make up a smaller proportion of the population today than in colonial times or in the days of the early republic, there are still those for whom religion is nothing if it is not sectarian and specific. For these it is not a good thing to be engaging in worship with other types of believers. One has to think only of the views of Bob Jones III and his university that was so much in the news during the early Republican campaign of 2000. Clearly, Bob Jones University fundamentalists do not think that nonsectarian prayer with Roman Catholics is necessarily a good thing. Rather, those types of fundamentalists believe that the Roman Catholic Church is a cult.
The seventeenth-century religious liberty advocate Roger Williams was perhaps the most forceful thinker in American history on this point. He believed that coercing people to engage in worship that was not their own was “spiritual rape.”13 Scalia, as noted, denied that anyone was being coerced in the Rhode Island graduation ceremony, but he believed that voluntary participation in nonsectarian prayer was a public good that should be promoted by the government. Williams, by contrast, believed that even such voluntary participation in worship with those who were in error was to be subjected to “spiritual stain.” His was a doctrine of separation from false belief.
Following this line of thinking, in the seventeenth and eighteenth centuries there were Baptists who believed they were subjected to such stain merely by being present at infant baptisms. As legal scholar Timothy Hall has written recently concerning these Baptists: “For at least some of them, respectful silence was not possible because they viewed such silence as making them partakers of a perceived evil.”14 If required to attend such services, they would turn their backs rather than risk complicity.
By contrast, Scalia holds out for us a very modern and diluted form of civil religion as exemplary for public life. Ironically, in the same opinion he criticized the other justices for holding out as normative an equally modern conception. Their view, he charged, is that religion is a private affair, like pornography, to be kept out of the public eye. Like the view that all religions have a common core, this too is a major component of the modern view of religion that stems from the Enlightenment. In this view religion falls into the realm of opinion, speculation, or even superstition. It’s OK for individuals, but cannot be the basis of public argument, because it is too subjective.
Scalia disagrees with the modern notion that religion must remain private. He likes public religion. But with regard to the idea that Baptists and Catholics, and presumably every other type of believer, gain something positive from ecumenical worship, he too exhibits a very modern view of religion. To quote Hall again: “Justice Scalia’s vision of tolerance-in-sameness makes a civic virtue of the religious vision commonly referred to as ecumenism. This, of course, is a religious vision with respectable credentials. It is, nevertheless, a particular religious vision.”15
Under this rubric people of all religions, or at least all Western ones, can come together in prayer. It really doesn’t matter in whose name the prayer is uttered. By implication, those who would resist such ecumenism apparently need a good dose of Rabbi Gutterman’s inspiring nonsectarian prayer to inoculate them from bigotry and prejudice.
All this is not to say that the graduation prayer should have been constitutional or unconstitutional. That is another question. The point here is that even the great textualist Antonin Scalia can’t help letting his conception of religion slip into his opinions. Like everyone else, he has background beliefs, or presuppositions, that influence the way he interprets the text of the Constitution. On this particular matter his is the religion of Rodney King, who exclaimed after the Los Angeles riots of the early nineties, “Can’t we all just get along?” For Scalia, not to mention Jefferson and Adams, the answer is yes, at least in our public religion.
Suppose, however, that Roger Williams were on the Court. He would hardly be extolling the virtues of ecumenical, nonsectarian prayer and a conception of religion by which nearly all can worship together. Rather, he would be vilifying the state for fostering spiritual rape. Williams’ view of religion was traditional, premodern, and sectarian. He might agree that Jefferson and Adams would have liked public displays of diluted religion, but he could also have charged that for the state to actually promote such official tolerance was tantamount to establishing a particular type of religion—the modern public religion of all those who, like Scalia, believe that ecumenical worship is a good thing. For Williams, therefore, there was only one answer—a secular state that never promoted religion.
There is no reason to doubt that Justice Scalia’s personal religion is devout. He adheres to a specific faith with its own traditional dogma. One might even say that he is personally sectarian in his beliefs. His view of public religion, however, is quite different. It is broad, ecumenical, and nonsectarian. He believes it is a good thing when the state encourages people to just get along in matters of religion, or, as he put it, when the state seeks to inoculate people from religious bigotry and prejudice.
This idea that we can all get along in worship together stems from one form of modern religious belief no less so than the view that religion ought to remain wholly private. When Scalia accuses his opponents on the bench of importing a particular view of religion into their decisions, he is the pot calling the kettle black, for he does the same thing. Moreover, if the great textualist Scalia cannot avoid this, it is doubtful that anyone can.
Barry Hankins is assistant professor of history and church state studies at the J.M. Dawson Institute of Church and State Studies at Baylor University, Waco, Texas.
Footnotes
1Mark Tushnet of the Georgetown University School of Law has been quoted as saying, “Before Scalia, until the late ‘80s, the justices would issue a ruling and say, ‘Here is why our opinion makes sense,’ and then support it with some law and history. But now everyone is much more conscious about looking at what the text [of the Constitution] says—and often less conscious about how that might fit into a social or practical context” (quoted in Robert Marquand, “High Court’s Colorful Man in Black,” Christian Science Monitor, Mar. 3, 1998).
2 Robert E. Lee v. Daniel Weisman (1992), 505 U.S. 577, 593.
3 Ibid., p. 598.
4 The famous Lemon test has three prongs: (1) a state action must have a secular purpose; (2) the primary effect of such action must be neither to inhibit nor to advance religion; and( 3) the state action must not cause an excessive entanglement between church and state. If an action violates any of these three prongs, it can be ruled an unconstitutional establishment of religion. While never discarded or explicitly replaced, the Court has been steering clear of the Lemon test for most of the past decade. Lee v. Weisman was one of several cases in which the Court could have used the Lemon test but chose not to.
5 Lee v. Weisman, p. 636.
6 Ibid., p. 645.
7 Ibid., p. 632.
8 It should be noted that I am not using the term sectarian in a pejorative or negative manner. By sectarian, I am referring to the type of faith that emphasizes its own distinctives as true and therefore tries to steer clear of alliances that would dilute or otherwise compromise specific beliefs.
9 In its simplest definition civil religion is the mixing of religion and national or cultural themes into a broad and amorphous type of faith that includes nearly everyone in the culture.
10 Lee v. Weisman, p. 638.
11 Ibid., p. 646.
12 Ibid.
13 Timothy Hall, Separating Church and State: Roger Williams and Religious Liberty (Urbana, Ill.: University of Illinois Press, 1998), pp. 86, 87.
14 Ibid., p. 156. Hall discusses the differences between Scalia’s view of religion and that of Williams on pp. 159, 160.
15 Ibid., p. 163.
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