Leon Wieseltier objects to Justice Scalia’s “bullying and intellectually unclouded” dissent in the Kentucky Ten Commandments case. I didn’t find Wieseltier persuasive.

1) “Scalia is calling for a tyranny of the majority.” In the passage cited, Scalia is saying that the Establishment Clause “permits” governments to acknowledge the religious beliefs of the majority while disregarding minority views. Presumably it “permits” the governmental acknowledgment of minority religious views and the disregard of majority views, but that is not likely to happen. I doubt that Scalia regards it as “tyrannical” for government to affirm some religious views over others. (I think it a bit hysterical myself.) But even if he did, he might not consider the Supreme Court authorized to intervene. He’s not “calling for” local government in Kentucky to do anything in particular.

2) Scalia “evades” Justice O’Connor’s brilliant point that “[w]e do not count heads before enforcing the First Amendment.” It’s true that he does not directly take on O’Connor, but it’s hard to see how her point weakens his argument. Scalia would presumably agree that the fact that Hindus are a small minority of Americans does not reduce their free exercise rights. But where the Constitution gives governments free rein, the views of the majority are likely to prevail. To make that point is not to adopt a “pandering jurisprudence of popularity.”

3) “A close reading of Scalia’s opinion . . . reveals that he supports the cause of religion in America not only because religion is real, but also because religion is right. And by religion, Scalia means his religion. . . . Scalia’s thinking on this subject is thoroughly sectarian: He wants his government to favor his faith. Like millions of Americans, he wishes to be affirmed.” Wieseltier doesn’t take us through his process of close reading. He just asserts that it yielded his conclusion. My own close reading of the passage in question is that Wieseltier is blowing smoke. Anyway, Scalia’s religion is not the majority religion of this country or most of its localities and never has been.