Justice Scalia's Confusion
During oral arguments leading to a 5 to 4 Supreme Court split-decision in favor of a stone monument to the Ten Commandments (Van Orden v. Perry), Justice Scalia declared, "What the commandments stand for is the direction of human affairs by God." He punctuated his assertion by further declaring the Ten Commandments to be "a symbol of the fact that government derives its authority from God" (source). Authority by Devine right or mandate? Isn't that exactly what we fought a revolutionary war to dig ourselves out from under? What article or clause of the Constitution supports Scalia's claims? To the contrary, the opening preamble declares, "We the People of the United States ... do ordain and establish this Constitution". Is he challenging the authority of those words? Nowhere within the Constitution is there any mention of Moses or his commandments. Nor is the term "God" used even once. Why does the Constitution omit any reference to deity or religious doctrine in its establishment of authority and specification of law? It certainly wasn't an inadvertent oversight on the part of the Constitution's framers. Was it because government entanglement with religion had a long history in the old world and in the colonies of creating tyranny, persecution, and bloodshed? Weren't the above stated omissions and explicit construction of the religion clauses intended to inoculate both government and nation against abuses by religious factions? Scalia's assertions are particularly offensive because they lurk just one step away from advocating that government by default owes its authority to the whims of the pulpit.
In
the present context, the term "inoculation" is descriptively accurate
regarding original intent. If biblical religion had not possessed the
aforementioned history, if the country wasn't plagued with religious buggery
before and during the Constitution's formulation and ratification, then
what purpose were the religion clauses possibly intended to serve?
Their purpose should be just as evident now as it certainly was back when
the Constitution and Bill of Rights were ratified. That is, to inoculate
against government entanglement with religion and its doctrinal artifacts, and
thus also to prevent the government from being used to dictate religion to the
people. The "concessions" to religion that various factions
succeeded in unilaterally "grand-fathering" in the aftermath of the
Constitution's ratification, do not diminish the historical certainty of that
intent. The concessions have unfortunately served the agenda of those
who would "interpret" original intent to be altogether different from
what the religion clauses unambiguously imply.
Still, in the political crucible between the literal and the interpretive, no honest pretense to grand-fathering could possibly justify the rash of Ten Commandment monuments that showed up on government property in the wake of Cecil B Demille's 1956 phantasmagoric biblical movie, now amounting to some 2000 monuments overall. It does not matter that the monuments were wedged into place decades ago or that litigation against them is an extremely daunting task. The constitutional contravention they create is as real today as when they were first installed. The need for rectification remains active regardless of how long the wheels of justice must grind to accomplish that end. The influence of their presence on government ground is neither benign nor non-coercive, as Justice Thomas for example, would have us believe, but rather pervasive and cumulative. Their presence establishes and sustains undeniable government endorsement of a particular religious ideology and doctrine. Scalia's claims about the symbolic status of the commandments are testimony to his religious prejudices in that regard.
With all due respect for the truth, the sentient existence of the god of Moses or any other deity for that matter is a religious belief, not a fact, not legal or otherwise. Bald faced claims are not facts. They prove nothing more than someone's tendency to so assert. In the final analyses, there is only Moses' claim to divine authority for his proclamations. Legend has it that Moses was raised as a Pharaoh's son. Thus he would have been well schooled in taking on the persona of a god. Claims of divine authority were common among the kings and priests of antiquity and usually more in the service of selfish ambitions then of timelessly wise and just law. Scalia's own proclamations in the present case are also religiously motivated claims, not facts. Examining their substance a bit further, however, is he claiming that "authority" is the special privy of the tribal deity and laws of Moses? It would actually seem that he is using his judicial authority to endorse religion and a specific religion at that. (A Generic Monotheistic Deity?)
Undoubtedly, many people in this nation do believe in some great supernatural being or beings, and nobody in their right constitutional mind would dispute their right to those beliefs. That is just as long as they are not taking it upon themselves to shove religious ideology and doctrine down the throats of others, and that should certainly include not using the judicial bench as a podium to do so. Proselytization is not part of a Supreme Court Justice's job description. One could conclude that Scalia is just plain confused about the difference between fact and belief and also about what proselytization is or is not, but it sure looks like confusion with an agenda. Nor was it the first time that his judicial opinion was afflicted with a religion-favored bout of confusion.
The issue at hand is not just one of pure symbolism. Having the laws of Moses in any translation showcased on government ground puts the standing law of the Nation in a competitive relation to them. Not only are the commandments inexorably religious, many of the mandates within conflict with our civil liberties, privileges, and immunities under the Constitution and the civil codes pursuant thereof (American Law). To buy into Scalia's construction is to conclude that the laws of Moses trump the authority of the Constitution itself. That is a very divisive notion indeed. In such case, it would inevitably follow that using the public trust as a billboard for advancing biblical doctrine should be viewed as some kind of divine right. All this smacks of some sort of judicial activism or revisionism in the service of biblical theocracy and its pulpits. Allow the fundamentalist social conservative agenda to gain the upper hand in the courts and kiss goodbye to the non-majoritive authority of the Constitution and the religiously neutral integrity of the public trust.
Unfortunately, Scalia is not the only justice with an extreme conservative agenda. It was justices Rehnquist, Kennedy, Thomas, and Breyer along with Scalia that allowed the monument to stand, although Sauter, Ginsburg, O'Connor, and Stevens dissented (ruling). For the bare majority that ruled in favor of the monument, somewhere along the line an educational imperative or two about history's lessons, past and present, did not receive the weight of importance they deserve. For what it's worth, one could hope for some remedial effort on their part. Particularly regarding the centuries of oppressive government levied against humanity by the unbridled dominance of "God's law" in the Middle East, taking Iran for a currently notable example (see Islamic Prophets). Do we want this nation directed down a retrograde path to such ideological and cultural hell? With the current judicial vacancies and the right wing in power in Washington, the integrity of our Nation's highest court for issues of government-religion separation is uniquely deeply in jeopardy.
The deity of Moses was definitely not what Thomas Jefferson had in mind when he wrote of "Natures God" in the Declaration of Independence. The Declaration of Independence, signed by all the leaders of the American Revolution, is a legitimate artifact of this nation's sacred history and traditions, whereas the laws of Moses are not. We already have in the Declaration of Independence a "symbolic" standard of the kind that Scalia pontificated about. And as to matters of decalogue, we already have that in the Bill or Rights. We do not need those great touchstones of our National heritage supplanted with a civilly intractable, religiously prejudiced substitute from the archaic tool bag of Middle Eastern theocracy (note).
There is more than enough church property outside the
public trust where the monuments in question can be relocated. There,
without the possibility of coercion from government, without conflict with the
Constitution or their fellow citizens, the people can go, if they so choose, and
"acknowledge" or "venerate" the archaic tribal deity and laws of
Moses. There are those who argue that prohibiting such displays on
government property would be an act of government hostility toward religion.
The argument is patently false. If the government prohibited such things
on church property, then it would indeed be in
violation of the free exercise clause and the hostility argument would be valid.
To the contrary, it is those who refuse to remove such monuments from government
property or conspire to deposit still more who are guilty of hostility. The
commandment, "Thou shalt have no other gods before me", speaks for
itself. There is nothing democratic or pluralistic about it. It
epitomizes hostility toward all other religion and thus also toward any
legitimate pretense to religious freedom. That is a fact.