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Church, State And Alito

Susan Jacoby

December 12, 2005

Susan Jacoby is the author of Freethinkers: A History of American Secularism. This essay is adapted from an article  in the December issue of Mother Jones magazine.

When the Supreme Court, in one of its most important decisions this year, ordered two Kentucky counties to dismantle conspicuous courthouse displays of the Ten Commandments, Associate Justice Antonin Scalia chastised the court majority with the novel argument that the Constitution permits "disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists" (McCreary County v. ACLU of Kentucky ).

The first question the Senate Judiciary Committee should ask Supreme Court nominee Samuel A. Alito when his confirmation hearings begin in January is whether he agrees with Scalia's absurd argument. Scalia ignores the fact that the Constitution has nothing whatever to say about God, gods or any form of religious belief or nonbelief—apart from its prohibition of religious tests for public office and the First Amendment's familiar declaration that Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

If Alito does support Scalia’s view—or if he dodges the question—liberal and libertarian senators should vote against him and save the breath they will otherwise waste in an effort to bait the nominee into revealing his views on abortion, the teaching of evolution in public schools and other faith-related issues likely to wend their way to the court. If a judge does not have the basic facts of American history straight, he cannot be trusted to approach any issue with an open mind. 

The twisted logic in Scalia's McCreary dissent embodies the radical historical revisionism at the heart of  the Christian right's campaign to portray the separation of church and state as a lie of the secular left. A Martian (or polytheist) might infer from reading Scalia that the establishment clause actually concludes with the phrase "free exercise thereof—as long as the faithful worship one God whose eye is on the sparrow."

The Framers, however, deliberately omitted any mention of God from the nation's founding document and instead ceded supreme governmental authority to "We the People"—not “we the people under God,” as they might easily have done and avoided controversy. The Rev. John M. Mason, a  fire-breathing New York minister and a theological ancestor of Pat Robertson, spoke for 18th century religious reactionaries when he declared the absence of God in the Constitution "an omission which no pretext whatever can palliate" and warned that Americans would "have every reason to tremble, lest the Governor of the universe... crush us to atoms in the wreck."  

The constitutional silence on the subject of God continues to pose an intractable problem for the 21st century apostles of religious correctness, who—though they misleadingly call themselves "originalists"—can find nothing in the original  words of the Constitution to justify their push for more government entanglement with religion. 

Thus, the judicial opinions of religious conservatives repeatedly cite not law but  later customs—many extra-governmental—such as the the 1954 insertion of  "under God" into the 1892 Pledge of Allegiance and the ubiquitous invocation, "God Bless America" (the title of the 1918  Irving Berlin song that has become part of the culture of patriotic piety). Scalia's McCreary opinion begins with an anecdote citing the envy of unnamed judicial colleagues in "secular Europe" upon hearing President Bush conclude his post-9/11 address to the nation with "God bless America."

The founders themselves—many of whom, it should be noted, were naughty Enlightenment deists who did indeed believe in an "uninvolved" divinity—had varying ideas about how much distance to place between their private beliefs and public roles. George Washington saw nothing wrong with issuing presidential proclamations of thanksgiving to God, while Thomas Jefferson considered such proclamations unconstitutional. What the founders did share was the belief that Europe’s incestuous melding of religion and government had been bad for both.

From the beginning, Americans were a religious people with a secular  government—a creative civic paradox that religious fanatics in every generation have attempted to undermine.

When orthodox ministers agitated for an end to "sacrilegous" Sunday mail service in the 1820s, Richard M. Johnson, a Baptist and chairman of the Senate Committee on the Post Office and Post Roads, reminded Americans in a widely reprinted report of the religious persecutions that had impelled their revolutionary predecessors to draw a firm line—"the line cannot be too firmly drawn"—between church and state. Congress and the majority of the public agreed. During the Civil War, Abraham Lincoln gave a cold shoulder to demands by Protestant ministers  that the secular preamble to the Constitution be replaced with an amendment declaring not only God but the "revealed will" of Jesus Christ  as the "supreme law of the land."  

It is inevitable and legitimate that judges—whether they admit it or not before they are confirmed for life—should bring their private moral and religious beliefs to bear on legal "values issues." But those beliefs must be balanced by respect for the secular side of America's civic heritage, lest religious believers on the bench search for and find tortuous legal rationales for writing their personal articles of faith into law.   

The crucial question regarding judicial nominees is not what they personally believe about such issues or even whether they agree with the teaching of their churches but whether they understand that the Constitution, not the Bible, is the foundational  document of the government they serve. The obligation to respect the facts of American history is constant, whether judges choose to be sworn in on a stack of Bibles—another custom frequently confused with law—or whether, as the Constitution explicitly permits, they simply "affirm" their dedication in a nonreligious statement.

Anyone who genuinely believes the big lie of the religious right—that it is constitutionally permissable to disregard the rights of both unbelievers and unorthodox believers—belongs not on the nation's highest court but in a remedial civics class.