Bench Memos

Jeffrey Rosen’s Wildly Distorted Account of Justice Scalia on Prayer

In an essay titled “Antonin Scalia Just Cracked the Door to State-Sanctioned Prayer: Religious supremacy may be on the rise at the Supreme Court,” the New Republic’s Jeffrey Rosen offers his take on last week’s oral argument in the legislative-prayer case, Town of Greece v. Galloway. As it happens, every assertion that Rosen makes about Scalia that might tend to support the screeching title of his essay is wrong.

Rosen attributes to Scalia a position that Rosen labels “religious supremacism.” As Rosen describes it, that position would mean that “even openly sectarian prayers in courtrooms and schools might be permissible if they were opened to all religions and if citizens weren’t legally coerced to participate.” Let’s set aside how odd the label “religious supremacism” is for a position that would also allow all state-sponsored prayer to be banished from “courtrooms and schools” and everywhere else. The more fundamental point is that Scalia has long repudiated the position that Rosen ascribes to him—and that, contrary to what Rosen claims, Scalia didn’t remotely embrace it in last week’s oral argument.

Rosen quotes a passage from Scalia’s dissent in the 1992 case of Lee v. Weisman to support his claim that Scalia would construe the Establishment Clause to allow “even openly sectarian prayers in courtrooms and schools.” That passage would leave the trusting reader to believe that Scalia has adopted a test under which “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” is a necessary element of an Establishment Clause violation. But, in a passage much quoted in the briefs in the pending case, Scalia rejected that position in his dissent in Lee v. Weisman:

I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Holy Trinity Church v. United States, 143 U.S. 457 (1892), ruled out of order government-sponsored endorsement of religion — even when no legal coercion is present, and indeed even when no ersatz, “peer pressure” psycho coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ).

Again at oral argument last week, Scalia made clear his belief that legal coercion is not a necessary element of an Establishment Clause violation. The passage (transcript, at 35:23-36:3) doesn’t read well because Scalia misspeaks and then corrects himself:

If there is — if coercion is the test of the Free Exercise Clause, why do we need a Free Exercise Clause? If there’s coercion — I’m sorry — of the Establishment Clause, why do we need the Establishment Clause? If there’s coercion, I assume it would violate the Free Exercise Clause, wouldn’t it?

It’s clear that what he means is: “If coercion were the test of the Establishment Clause, why would we need the Establishment Clause, since coercion would also violate the Free Exercise Clause?” Thus, he immediately follows up with: “So it seems to me very unlikely that the test for the Establishment Clause is identical to the test for the Free Exercise Clause.” (Transcript, 36:6-8).  

Consistent with his dissent in Lee v. Weisman, there is also nothing in Scalia’s comments and questions at oral argument that remotely support Rosen’s charge that Scalia is adopting a position that would “allow[] sectarian prayers in any public setting.” Rosen contends that Scalia “seemed to balk at the concession” by the town’s counsel that the context of legislative prayer is unique. But far from balking at that notion, Scalia himself repeatedly embraced it, as he emphasized “what distinguishes legislative prayer from other kinds” (transcript at 40:19-20; see generally 40:18-41:14, 49:6-16, 50:2-4). In other words, his position, understood within the context of his dissent in Lee v. Weisman, is that legislative prayer doesn’t involve “government-sponsored endorsement of religion” in which sectarian expressions are “out of order.”

There are, to be sure, plenty of reasonable grounds on which one might seek to contest Scalia’s position. But distorting it beyond recognition shouldn’t be one of them.

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