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Tuesday, October 13, 2009

Passion, Justice Scalia, and the Establishment Clause

Time has been escaping me, but I wanted to say something about Paul's earlier post about the cross case.  Read the whole thing -- that's the first time I have said that on a blog! -- but a major point of his post is how Justice Scalia's passions about the Establishment Clause are coming out in these cases.  Paul's impression was certainly not isolated; the ABA Journal has a similar take

I'd hedge a bit more than Paul does, but I too was struck by the transcript of last week's oral argument.  The rest of the Court seemed to think the constitutionality of the cross was a secondary or non-issue (because of res judicata), and wanted to focus on the land transfer.  Justice Scalia pushed the Court to address the constitutionality of the cross.  When he raised it with Solicitor General Kagan (yes, she herself argued the case), Kagan (who remember is on his side) too said that the Court should focus on the land transfer. (See p. 6-8.)  But he kept at the issue, and eventually got into the meaning of the cross with plaintiff's counsel, where he gave the "outrageous" comment that Paul and the ABA Journal mention (p. 39).

Justice Scalia is clearly frustrated with the current state of the Establishment Clause.  (Who isn't!)  And it reminded me of an interview that he gave recently, which hasn't received the kind of press I expected:

There is a quote attributed to various people from Bismarck down to Charles de Gaulle. I prefer to attribute it to Charles de Gaulle because it sounds like him.

“G-d protects,” he said, “little children, drunkards and the United States of America.” I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court open its sessions with “G-d save the United States.” Those things are not insignificant.

The Charles de Gaulle quote is nice.  But it's not new.  Justice Scalia actually put it at the beginning of his McCreary County dissent (one of the Ten Commandments cases) a couple of years ago.  Yet there is something new here.  It's the follow-up, "I think it may be true.  And the reason may be because we honor Him as a nation."  This is a suggestion that God's protection of this country may rest on the government's continued endorsement of religion.  You can see how it ties back into Salazar v. Buono.  With comments like these, I fear Justice Scalia has left himself open to charges like Paul's.

Posted by Chris Lund on October 13, 2009 at 01:27 PM | Permalink


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