Tuesday, June 17, 2014

The Missing Clause in Scalia’s First Amendment

From Lawyers, Guns, and Money, courtesy of Eschaton:

Which brings us to the related fallacy in Scalia’s argument — the assertion that the First Amendment simply “favors” religion while it is “agnostic” about music. The problem, needless to say, is that while the First Amendment protects the religious beliefs of individuals, in the previous clause it disfavors religious endorsements by the state. The distinction between expressions of religious belief by individuals in public and the endorsement of religion by the state and its officials mirrors the distinction in the First Amendment. Reasonable people can disagree about whether the Establishment Clause forbids holding public school graduation ceremonies in a church (although the arguments on behalf of the state strike me as very weak), but the idea that the case presents an issue no different than a private individual saying a prayer on a municipal bus is remarkably silly.

More here.

Still more evidence that, in this day and age, there really can be no such thing as a conservative intellectual.  I mean, Scalia's just got to be considered the top conservative intellect in the country, and he gets wrong one of the more simple ramifications of our first amendment freedoms.

Religious expression is protected by the Constitution in multiple ways.  Obviously, the amendment's "establishment clause" serves as the strongest guarantee for religious expression, but the freedoms of speech and assembly protect it twice again.  You have the right to go around talking about your religion, or God, or Jesus, or the Buddha, or Allah, Odin, whatever.  You have the right to pray in public.  You have the right to get together with others in public and worship, or proselytize, or whatever.  These rights are non-negotiable, and only limited when the circumstances are such that religious expression interferes with the rights of others.  So you can't, say, get up in the middle of class at school and start chanting while the teacher is lecturing or during a test.  All very reasonable.

Indeed, when I was teaching I often encouraged my students to pray, if they wanted to do so, just to point out how the whole prayer-in-school thing is so totally misunderstood by conservatives.  It's that the teacher, as a representative of the government, cannot lead the class in prayer, not that prayer has been banned from school.  All I asked from them was that they not disrupt class with their religious expression.  No big deal.  Not rocket science.  Easy stuff.

Scalia, our nation's foremost right-wing "intellectual," however, seems to be utterly CLUELESS about how this works.  Again, this is easy stuff: all individual citizens have near absolute freedom of religious expression; the government, however, cannot favor any religion in any way because numerous precedents have found that doing so is tantamount to establishing an official religion, a clear violation of the first amendment.  Got it?  Individuals, yes.  Government, no.  So easy a four year old child could understand it.

I mean, sure, Scalia could have gone after the precedent cases, made an argument that the establishment clause doesn't mean what we think it means, etc., but as far as I can tell, he didn't do that.  Instead, he just seems confused, conflating freedom of speech and freedom of worship into a weird hybrid thingy which somehow disses God.  Or something.  Somebody run out and get this guy a four year old child.  He obviously can't make heads or tails out of this.

Is he stupid?  Well, in the strictest sense, no, of course not.  I mean, he's got a law degree and all.  Gotta read a lot of dense tomes to get one of those.  But he certainly is acting like a total bucktoothed flibgibberty hayseed idiot here.  On the other hand, this isn't his first time.