Justice Scalia and Monotheism:

On many occasions, opinions that aimed to uphold government religious speech against Establishment Clause challenge have stressed that such speech was "nondenominational," or have argued that the Establishment Clause bars discrimination among religions — even in government speech — but not discrimination in favor of religion generally.

But this was always something of a fiction. Every reference to "God" carries a theological view that excludes not just atheists but also polytheists (such as Hindus and Shintoists) and religious people whose religious views don't involve a God (such as Buddhists). There are no nondenominational religious statements, except perhaps in jokes of the "whoever You are, male, female, neuter, animate, inanimate, many, one, existent, or nonexistent" variety.

To his credit, Justice Scalia's dissent in McCreary acknowledges this, suggests a dividing line (endorsement of monotheism is fine, endorsements of specific monotheistic religions is not), argues that this line is supported by original meaning and history, acknowledges that this may offend people who adhere to nonmonotheistic religions, but argues that this shouldn't pose a constitutional problem. Yet the liberals rightly ask: Why does this history so clearly support a constitutional preference for monotheism (which includes Christianity, Judaism, and Islam) but not for Christianity specifically?

Scalia points to a good deal of historical evidence (in my view very powerful evidence) that the Framers and subsequent generations endorsed some government religious speech. And he explains his "monotheism" rule by pointing out that the speech generally referred to "God" or versions of that, and not "Jesus Christ."

But there were quite a few contemporaneous state constitutions that preferred Christians over non-Christians (some preferring Protestants over non-Protestants). There was influential commentary in the 1800s saying that the Constitution tolerated endorsement of Christianity specifically; and Justice Scalia has long stressed the importance of post-enactment interpretations as well as of the original meaning. More broadly, when Christians talk about "God," they may be doing this not because they understand there to be some "endorsement of monotheism OK, endorsement of Christianity forbidden" rule, but because their Christian theologies (or even their esthetics) leads them to use the term "God" in certain contexts more than the term "Jesus Christ."

Jack Balkin cricitizes Justice Scalia on this score, and while I don't entirely agree with his views, it seems to me there is much to them. Certainly an originalist may well conclude that, whether he likes it or not, government endorsement of Christianity is permissible. But Justice Scalia's position that the Establishment Clause tolerates endorsement of monotheism but not of Christianity, while more palatable to many today (likely including Justice Scalia himself), is also less persuasive as an originalist matter.

UPDATE: Rick Garnett defends Scalia at SCOTUSblog.

Jake (mail):
When examining constitutional history, I believe there is too little mention of the influence Free-Masons had on the drafting of the Constitution - only Christian framers are mentioned.

The Free-Masons want religion at home and government in public. Yet, this seems to be declining.

Also, and I stole this from a blog I read earlier - why don't they put up the Bill of Rights instead of the Commandments? The commandments don't even have substantial legal bearing outside of 2 or 3 of them.
6.27.2005 7:02pm
Eh Nonymous (mail) (www):
Monotheism may be more palatable to Justice Scalia and Christians in general, but it bothers me, and I grew up in another supposedly monotheistic religion, Judaism.

Jews in general in this country are more likely than Christians to support a big thick wall between Church and State. One possible rationale is self-protection. We tried the establishment thing in this country once; "Jews, Blacks, and Papists, Move On: This is a Good Christian Town" and similar traditional thoughts were the result.

So, all in all, I'd rather that _nobody_ could promote their beliefs over those of others, and that protects me from thee and thee from me. The alternative seems to be to allow the dominant (monotheistic) group to force the others to endorse what they would, in many cases, fight to oppose. That's no way to run a free country, history be damned.

Also, monotheism in practice turns out to be Christianity in particular, all too often. Which one God are we "So helping" ourselves to in court? Is it Allah? (Hollow laugh). If "Jesus Christ" can be written "God," as the post suggests, then maybe "God" is really a stand-in for Jesus Christ, and should be perceived that way. Most Americans are Christian, after all, so most of the time that's what they mean, right? In which case, no such thing as a nondenominational invocation of God.

"Higher Power" might work... if you believe in one... but it's just a euphemism, like Adonai, "Lord."

On the other hand...

Maybe letting us all swear to God up and down, and letting Congress and the President and the States do the same, would once and for all cure us of religious faith without meaning. The Europeans are blase about their state religions, when they have one. Heck, the Spanish, despite the Catholic Church, have a more lenient stance on pornography than does our beknighted country.

Or, given our history, allowing a little slack on the establishment clause might let the Great Awakening turn from smoldering torch to out-of-control wildfire.

I know which my money would be on.
6.27.2005 7:04pm
Mahan Atma (mail):
I think Scalia is shading the history quite a bit. He is constantly blurring the line between Christianity and monotheism. Who can seriously argue that Islam had any role whatsoever in this country's early history; so why the distinction between Jesus Christ and God?

Also many of the framers were Deists. Does this really count as part of the historical history of monotheism, given that they would have found the Ten Commandments anathema? Hard to reconcile that notion with this sort of quote:

"I have examined all the known superstitions of the word, and I do not find in our particular superstition of Christianity one redeeming feature. They are all alike founded on fables and mythology. Millions of innocent men, women and children, since the introduction of Christianity, have been burnt, tortured, fined and imprisoned. What has been the effect of this coercion? To make one half the world fools and the other half hypocrites; to support roguery and error all over the earth."

--Thomas Jefferson
6.27.2005 7:09pm
A useful recent case addressing this issue is the 4th Circuit's decision in Simpson v. Chesterfield County, No. 04-1045 (4th Cir. Apr 24, 2005)

The case upheld a local county board's use of exclusively monotheistic legislative prayer. It ordered dismissal of a Wiccan priestess' lawsuit against a town council which permitted only ministers of monotheistic religions to lead prayers. The 4th Circuit, distinguishing a previous case in which a town council's legislative prayers referred principally to "Jesus Christ", held that states were permitted by Marsh v. Chambers to confine legislative prayers to within the "Judeo-Christian tradition", that such confining did not make prayers sectarian within the meaning of Marsh, and that lower courts should be reluctant to make Marsh's exception to the Lemon test narrower than what the Supreme Court itself had allowed.

>"Marsh also considered, and found constitutionally acceptable, the fact that the prayers in question fit broadly within the 'Judeo-Christian tradition.'"
6.27.2005 7:35pm
Jon Rowe (mail) (www):
As usual, Thomas is on stronger grounds as an originalist.

Although I don't agree with Thomas's notion that the EC shouldn't be incorporated.

Under his theory of "coercive endorsements," government can endorse whatever it wants: monotheism, protestant fundamentalism, Satanism, Wicca, as long as its official acts don't cause any tangible harm, interfere with religious freedom, or deny any religion government privileges available to any other religion.

So for instance, if Catholic Schools are eligible for vouchers, then so too must Scientologist schools.

If Alabama wants to put up a Billboard that says, "the Catholic Church is the Whore of Babylon" as long as they respect Catholics right to worship or do not deny them ANY legal privileges that Protestants might be eligible for, it would be constitutional. After all, it's just a Billboard.

Thomas didn't say any of these things. But his logic of coercive endorsements imply these outcomes.
6.27.2005 7:51pm
Daniel San (mail):
The framers of the Constitution should not be assumed to be Christian. Some were Christian. Most, if not all, were, in some sense, very religious, and that religion would have been rooted in the Christian tradition.

The use of more generic religious terms (such as "Providence") was probably intentional. Scalia may have a point that the framers assumed monotheism, while they avoided specific Christian reference.

However, the intent of the framers concerning State practice is probably irrelevant. They did not intend that the First Amendment apply to the States. They probably assumed that the States would establish religion. There is evidence that all of them, including Jefferson, approved of this practice.
6.27.2005 7:53pm
Jon Rowe (mail) (www):
Scalia's monotheism:

According to Scalia, "monotheistic" religions -- Islam, Christianity, and Judaism -- believe that God revealed the Ten Commandments to Moses, therefore the displays are fine under the "government can endorse monotheism" rule.

Some problems, pointed out here and by Balkin:

1) Some very key and influential founders -- indeed most of the key founders, even if their views were dominant -- believed in a very unorthodox kind of monotheism. You can call it "deism"; although all the men we understand to be "deists" believed in an interventionist God. I think "deistic-unitarian" or "Christian deist" is more accurate. But anyway, these freethinkers doubted much of what was written in the Bible and didn't believe, or strongly doubted that Moses Revealed the Ten Commandments.

And as Balkin points out, a lot of liberal Christian and Jewish Church members doubt that God revealved the Ten Commands to Moses as well.

Moreover, "Nature's God" was unitarian, not Trinitarian. Adams, Franklin, and Jefferson, a majority of the drafting board of the Declaration were militant anti-Trinitarians in their private beliefs.

Therefore, if we are going to endorse the notion of a "lowest common denominator" monotheism (I've argued something similar on my blog), we are going to have to be really vague in indentifying his specific attributes, and arguably this Nature's God did NOT reveal the Ten Commandments to Moses.

If we accept the tenets of an LCD "Nature's God" we are inevitably left with the conclusion, posited by Walter Berns and Michael Zuckert, et al., that Revealed Religion is to be consigned to the private sector.
6.27.2005 8:04pm
Jon Rowe (mail) (www):
Correction. Should have read, "even if their views were WEREN'T dominant."
6.27.2005 8:05pm
pug (mail):
Scalia's play with words is laughable. During the founding generation, it was clear that when people said "God," they were not referring to Allah, Yahweh, or any other deity: they had in mind the Protestant God. Does anyone seriously think that the contemporary understanding of the word "God" during the founding era was anything but that? Perhaps you can quote a letter here or a pamphlet there that might support an alternative view, but Scalia has made it clear that the subjective beliefs of the founders or any one person is not dispositive. What counts is the original understanding. When people talked about "religion" and "God," they were talking about the dominant form of religion found in the colonies.

Secondly, where is all of this "original understanding" when Scalia is interpreting the Free Speech Clause of the First Amendment? It vanishes in thin air, like Scalia's credibility.

It's not Scalia's use of a flimsy originalism that bothers me. I'm not an originalist, and I can hardly fault him for not staying true to originalism. But what I can criticize him for is attacking, often viciously, judges who don't adhere to originalism by claiming that they, but not him—oh, never him!—are simply following their own personal preferences when interpreting the Constitution. For Scalia, if you're not an originalist, you're simply a political hack using the Constitution to enforce your own personal preferences on the masses; it's clear which side of the aisle you should find Scalia. He's a hypocritical political hack.
6.27.2005 8:21pm
David Cohen (mail):
One thought that always struck me, and I wonder whether anyone has seriously given any thought to, is that under more exterme version of the separation of church and state, it has never really been asked, what is a church/religion?

I raise this question as a former academic who studied (in part) 18th century Unitarianism. To someone who grew up Jewish Orthodox, Unitarianism seemed pretty thin gruel as far as "religion" - but reading the primary sources it definitely had "religious" feel to its adherent.

I mention this because it seems to me that many liberal pieties today, might actually be quite literal.

Take, for example, post-modern art. I don't get it, nor do most of the people, one cannot criticize it without being thought of a philistine, as it is ART and above criticism. Isn't this indicative of belief system not unlike a religion.

It seems to me that this line of reasoning could be profitable developed with respect to a number of matters, like the more extreme environmentalism advocated by PETA and the like. To the extent that these belief systems are found to be religions, then the government must disentangle itself from them as well.

Seems like a nice way for conservative activists to pull the whole edifice down, it they wanted to.

Just a thought
6.27.2005 8:33pm
Pop Art (mail):
I believe Daniel San is on to something. It should not be overlooked that the Establishment Clause was only originally intended to bind Congress, and not state governments, as can be seen from its wording ("Congress shall make no law ..."). The doctrine of incorporation arose much later, and the Establishment Clause was not incorporated to the States until the 1940s. Thus, a theory I have heard discussed - and that appears to make sense - is that the original intent of the Establishment Clause was to prevent the federal government from interfering with the States' freedom to have an established religion (given the Supremacy Clause), while perhaps at the same time avoiding a national religion such as England had. Indeed, Volokh indicated in his original post that many of the concurrent State constitutions endorsed Christianity. Whether or not the later adoption of the 14th amendment was intended to apply the Establishment Clause to the states is another matter, but that proposition seems dubious to me. However, I'd appreciate if anyone else has information on this topic (i.e., whether the Establishment Clause was originally intended to prevent the federal gov't from interfering with State establishment of religion).
6.27.2005 8:48pm
Sean Sirrine (mail) (www):
Something seems to be missing from these comments: The 14th Amendment. As Balkin so aptly writes:

Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment?

Scalia can be an originalist as much as he wants, but I don't believe he could ever manage to show that we should go back to the original meaning of "all men are created equal".

Just because the original drafters of the Constitution thought slavery was okay, (or at least didn't fight against it), doesn't mean we should allow discrimination against blacks.

Scalia may be right that originally the Establishment Clause was to protect monotheistic religions. He certainly knows more about the topic than I. However, that doesn't negate the Amendment that protects every citizen, giving them "equal protection of the laws."

It is telling that Justice Scalia only mentions the 14th Amendmend long enough to say that he doesn't have to apply it. Then he writes:

Even assuming, however, that the meaning of the Constitution ought to change according to democratic aspiritions, why are those aspiritions to be found in Justices' notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society?

Huh? Justice Scalia, The 14th Amendment is "the democratically adopted disposition of our current society".

Eugene Volokh makes some good points about the power of Scalia's opinion. All that power is snuffed out when you bring out the 14th Amendment. Whether or not the framers were Deists or Christians, or whether they endorsed state sponsered religion becomes moot.

Maybe we would allow discrimination against non-monotheistic religions at one point in our country. That became UNCONSTITUTIONAL once we incorporated the 14th Amendment.
6.27.2005 10:16pm
Pop Art (mail):
Actually, Sean Sirrine is wrong: at least one comment did take the 14th Amendment into account (my previous post). The 14th Amendment was adopted in the wake of the civil war, and at its core it concerns race, not religion (something that seems to have been overlooked by the Supreme Court in its most recent affirmative action decision, basically holding that it's okay for States to discriminate based on race). As I mentioned before, the idea that it was meant to apply the Establishment Clause to the states is highly dubious, given the Clause's wording and the lack of any express incorporation of it by the 14th Amendment, not to mention the fact that it was not until around 80 years later that the Supreme Court suddenly "discovered" the Amendment's impact on the Establishment Clause. Furthermore, simply waving the 14th Amendment around doesn't get around the reality that the Supreme Court's present interpretation of non-establishment is fanatical. Even if one can properly apply the Establishment Clause to the States, a prohibition on making "law[s]" which "establish[]" religion has been warped into an all-encompassing proscription on the government even acknowledging God's existence.
6.27.2005 11:02pm
Pop Art (mail):
. . . as well as a prohibition on private individuals saying a prayer at a football game if it involves a public school.
6.27.2005 11:10pm
Daniel San (mail):
There is certainly evidence that, for some of the framers, it was important to protect the State established religions from interference from a meddling Congress. But there was certainly no concensus among the framers. It is safe to say, I think, that most of us would find the religious beliefs and/or practices of many of the framers to be rather disturbing. Their outlook (as if there were a single outlook) simply will not fit into a 21st century, post-incorporation jurisprudence.
6.28.2005 12:18am
CharleyCarp (mail):
I could be wrong, but I think this is the rock upon which originalism, and current judicial conservatism in general, will sink. When you really get a chance to talk to people, they overwhelmingly go with the O'Connor position in McCreary. Once it becomes really clear where the Scalia and Thomas interpretative methodologies will go, a whole lot of folks -- who don't mind these same methods supporting limits on abortion -- are going to back away.

That is, I predict a Schiavo-like backlash if these guys are able to craft a full majority (i.e, w/o Breyer) in an Establishment Clause case of this type, for a display that goes as far as the Kentucky/Moore sort.
6.28.2005 12:56am
Gary McGath (www):
The most fundamental question of religion is: Is there at least one god? By taking a monotheistic position, the government would be answering this in the affirmative, and thus respecting an establishment of religion. Taking the contrary position would mean that the establishment clause doesn't prohibit excluding atheists from holding office or testifying in court. But the first amendment refers without qualification to "an establishment of religion," not "an establishment of a particular monotheistic religion."
6.28.2005 9:51am
regardless of whether the first amendment allows preference for monotheistic religions, what about the equal protection clause? shouldn't that clause bury scalia's nonsense?
6.28.2005 10:46am
Buck Turgidson (mail):
To put it plainly, I think you are just wrong on the issue. There is plenty of evidence that "the Framers", as a class, did not endorse monotheism. Quite a number of them, including those with the most recognizable names today were not Christians. They were theists, but that's a long way from saying that they were "monotheist" in the sense that you provided. A belief in a supreme entity, power or being does not necessarily entail a belief in a supreme deity, at least not in the Christian sense (and I am well aware that even this "sense" includes a variety of views).

But all of this is almost beside the point. The simple fact is that even those "Framers" who were of the "monotheistic" persuasion did not support government involvement in religious affairs and, as a consequence, did not want religious entities to be involved in affairs of the state. If anyone tries to make a "historical" argument for the presence of monotheism in the goverment, simply point to Jefferson and Madison, who not only made empassioned speeches for separation of Church and State, but managed to persuade legislatures (state and federal) to adopt their views.

The point that should be made is that religion is a private matter. It is personal. It should be reasonable to expect each individual to behave according to his religious or areligious principles no matter what position he may occupy in the government. His personal decisions and actions may well reflect this particular view. However, this should not transfer to decisions made and actions taken on behalf of the state. As a collective, these same deeply religious people may not impose their views on others, no matter how well intentioned they may be in doing so. That means that while each legislator may be guided by his religious principles when voting, legislation should not be written to reflect a particular religious view, nor should a public official impose a religious view on others (as some judges have done recently).

This country is not Saudi Arabia or even Poland or Israel. There is no state religion and there is no religion that is protected by the state at the expence to others. And if history has shown us anything in the past 30 years, it is that mingling state and church affairs is a slippery slope of the worst kind.
6.28.2005 12:05pm
Pop Art (mail):
Governmental involvement in church affairs is one thing; governmental acknowledgement of God is another. The EC separates government from church affairs, but it does not require silence on the existence and providence of God and the proper role of government in light of that existence and providence. Indeed, acknowledgement of God's sovereignty over human affairs is the very basis of the Declaration of Independence, and by extension, of the existence of the United States. If religious belief were coerced into a strictly private sphere, as Buck Turgidson suggests is appropriate, we would be left with a relativistic brawl which would inevitably lead to dictatorship (see below). Such governmental coercion, moreover, would represent endorsement of a particular religious view (atheistic humanism), and thus, would be inherently contradictory. In short, religious beliefs permeate all aspects of public and private life and cannot logically be confined solely to the private sphere. In this regard, it is worth noting as well that, if all liberties come from the government independent of God, then the government can take them away at its whim; on the other hand, if they come from God, as the Declaration of Independence affirms, then: (a) Government may not take them away but must instead safeguard and secure them (this is a primary purpose of the Constitution); and (b) to the extent the government acts contrary to the law of God, it is no longer acting as a legitimate authority.

As suggested above, in this discussion it is important to draw a distinction between religious belief and religious establishments, such as specific church denominations; it is also important to recognize that religious belief pertains less to soteriology (salvation) than it does to cosmology (the real power structure of the universe, with its implications on the relationship between man's law and divine law -- man's law being subordinate to and drawing its essence from divine law). Once that recognition is lost, and that distinction ceases to be drawn, we become confused over the meaning of non-establishment; in that event, we begin to require government to forsake any acknowledgement of God or of the resultant limitations on governmental power; we then become untethered to any fixed standard of right and wrong, might becomes right, and tyranny results. This is precisely how, in the early 20th Century, the most well educated and "enlightened" (by the world's standards) nation on earth devolved into Nazi Germany.

Finally, in light of the above, it should remembered that both Religion Clauses were designed to protect the church from the state, not the state from the church. The church has no army, but the state does, so it is the church that needs protection. If a government entity acknowledges God and God's limitations on, and requirements of, legitimate governmental authority, this does not put the church in danger of coercion by the state, much less the other way around. Therefore, there is no harm done to non-establishment principles, correctly understood.
6.28.2005 2:00pm