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Newdow on Scalia on Atheists

By Lawrence Solum

Mike Newdow has posted Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics? (Capital University Law Review, Forthcoming) on SSRN. Here is the abstract:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.

This article takes three approaches in considering the Justice?s argument. First, recognizing that Justice Scalia prides himself on being a 'textualist,' it considers the Establishment Clause?s text ('Congress shall make no law respecting an establishment of religion'). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.

Finally, in Part III, Justice Scalia?s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

Full post as published by Legal Theory Blog on April 26, 2010 (boomark / email).