A Stitch in Haste

Last week I had the pleasure of meeting up with a fellow blogger at a Pride Week reception. Among the many topics of conversation, I got around to asking this blogger — who is Jewish — how he felt about the "Christian nation" rhethoric in conservative circles and the hypocrisy of the "Judeo-Christian" qualifier that Bible-thumpers feel compelled to use in mixed company.

My blogger friend chuckled and remarked simply: "I'm still waiting for someone to ever introduce himself as a 'Judeo-Christian.'"

Well, Justice Scalia has taken this nonsense to the next plateau via his dissent in McCreary County v. ACLU, the "Ten Commandments in the courthouse case" --

Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as "a tolerable acknowledgment of beliefs widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism, and Islam — which combined account for 97.7% of all believers — are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.

So now we're not a "Christian nation" or even a "Judeo-Christian nation." Still refusing to acknowledge the reductio ad absurdum trap into which he has snared himself, Scalia now seriously posits that we are a "Judeo-Islamo-Christian nation."

All for the sake of smacking down atheists, religious non-monotheists, monotheists who wish to worship strictly in private rather than in courthouses, and anyone else who thinks that religious displays on government property are, um, wrong. (Or, to use Scalia's new term, the practicers of "irreligion.")

Professor Jack Balkin does the best job of skewering Scalia's idiocy (see also here):

Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion — first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot.

Here we have yet another example of how Scalia is anything but a "strict constructionist." A true textualist begins with the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

and stops there. A true "strict constructionist" does not engage in the most insolent intellectual gymnastics to show that since the Founders were religious (they were, of course, for the most part, not fervent Christians and certainly not Jewish or Muslim or "Judeo-Christian" or "Judeo-Islamo-Christian" either).

But in a desperate, and futile, attempt to demonstrate that the Ten Commandments are "no big deal," (i.e., since almost everybody accepts them, they are not really "religious" in the First Amendment sense of the term), Scalia has no choice but to dilute the standard hyper-conservative "Christian nation" gobbledygook by incorporating Islam into his argument (since the more people there are who accept the Ten Commandments, the less of a "religious" principle they become, which is necessary for the First Amendment not to be violated).

So in order to successfully invoke "framers' intent," Scalia twists "religion" into a ludicrous "big tent" of monotheists who, historically, have spent more time fighting and killing each other than worshipping together.

In order to save his vision of "religion," it became necessary for Scalia to destroy it.

I look forward to seeing him pout on C-SPAN like he has with just about every other major decision he's lost recently.

UPDATE: Jon Rowe, who is an expert on the religious context of the Framers, has much more.