Tuesday, April 27, 2010
Newdow on Scalia on the Establishment Clause
Michael Newdow has posted his paper, Question for Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics? Here's (an excerpt of) 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. . . . 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.
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/04/newdow-on-scalia-on-the-establishment-clause.html
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From my reading of McCready, Justice Scalia is not advocating the required expression of religious faith in the public sphere, but that such an expression is permissive under the early understanding of the First Amendment as shown by the actions of the Founding Fathers. The Establishment Clause "permits the disregard of devout atheist" only in the sense that we say "God bless America." Moreover, I do not beleive Scalia would find it against the Constitution if any such mention was removed. His point is that the atheist (and polytheist) may be left out with the invocation of a monotheistic God that, as Scalia puts it, 97.7% of Americans beleive in.
On Mr. Newdow's last point, I do not recall the United States being "born on the literal hatred for Catholics." There has surely been an anti-Catholic sentiment throughout American history, but it has never been a driving ideology of the nation. Moreover, Maryland was founded as a haven for English Catholics. In any case, I do not think Justice Scalia would find that early anti-Catholic histeria would be grounds for disregarding public expressions of faith in an almighty God. His examples in the McCready dissent only show repeated invocations of a nondemoninational Almighty that could apply to people of the Catholic or Protestant faith.