Universal Translator

Monday, December 26, 2011

Scalia and Me

I have had three (kind of) run-ins with Justice Antonin Scalia, none of which he knows about or would remember.

The third of these was decades ago, when I was on the Beltway traveling to see friends.  A large BMW passed me and I noticed that the license plate read “SCALIA.”  That’s gotta be Tony, I thought and I sped up to catch it.  Whoever was driving the thing must’ve seen me coming, because suddenly the Beemer sped up to about 90.  And now it was a race, which only made me even more determined to catch him.  I gunned my car and gave chase.  We kept playing follow-me/catch-up until eventually the Beemer got caught in traffic and I could pull alongside it to peer within.

The driver shot me a look and in my recollection he seemed a bit scared.  Which is how I know it wasn’t Antonin Scalia – even federal district court judges carry emergency “panic buttons” (I would learn that later; I didn’t know that when I was still young enough to start chasing Beemers that might be carrying Supreme Court justices) with which to summon federal marshals, but this guy was panicked by a kid in an old Chevy convertible chasing after him.

Still . . . the driver actually looked at lot like Tony, just a younger version.  He turned and stared at me and I thought it must be his son, but I don’t even know if Scalia has a son.  Maybe the streets of DC are just filled with a lot of short, heavy-set Italians named Scalia.

My first run-in with Justice Scalia didn’t personally involve him at all.  I had no idea who this guy was until I was in a Constitutional Law class and my professor invited us to examine the reasoning behind the decision EEOC v. Smith – written by one Antonin Scalia (my ConLaw professor had studied under Scalia when Scalia was still teaching at the University of Chicago).

Smith involved the practitioners of a Native American church who argued that the state’s (Oregon’s?  I think that’s right) laws banning the use of hallucinogenics unconstitutionally interfered with their First Amendment right to freedom of religion.  They argued that their native religious teachings made taking hallucinogens a sacrament, and that for the government to outlaw that sacrament was unconstitutional.

Writing for the Court, Scalia dismissed these arguments.  Essentially, Scalia asserted that the government was entitled to draft broad rules to govern conduct, and that if those rules happened – accidentally – to infringe on a particular religious observance that was still okay, provided there was no evidence the government intended to infringe on a particular religious observance.

I was very young at the time, and more interested in learning rules than I was in really thinking about where those rules come from – I just wanted to be able to pass the test at the end of the semester.  So when I read that decision I didn’t really think much of it.  Okay, I thought, that seems a reasonable enough decision.

It is to my ConLaw professor’s credit that he probably is the guy most responsible for starting me really thinking things through. 

Decades later, I still remember Professor Gerhardt pointing out that Scalia’s argument basically enshrines majority religious views.  Would Scalia, Professor Gerhardt asked us, adopt this reasoning if he weren’t himself Catholic?  There are some dodgy practices in Catholicism that Scalia presumably would not be happy about the state outlawing.  But Scalia doesn’t have to worry about the state outlawing anything important to Catholicism because, well, Catholics wield a lot of political power.  Are we to understand that our First Amendment Freedom of Religion depends to a large extent on what the majority allows us to do?


Maybe that is how it works out in Real Life, but maybe it shouldn’t work out that way.  Maybe allowing unquestioned ideas about what is done versus what is not done to influence how we see, understand and allow our fellow citizens to practice their religion – their most personal and intense relationship with Life, the Universe and Everything – isn’t the best way to govern ourselves.  Maybe we could do better than that.

I remember my professor posing these questions, and I remember realizing that I had not thought of them at all and that I had no real good answers to any of them.  This was probably the very first time that I had been asked to think beyond the rules and to start thinking instead about where those rules come from.  So . . . thanks, Professor Gerhardt.

* * *

The only other time I would have a run-in with Antonin Scalia was also the only time we ever met face-to-face.  One of my law school classmates had spent time working as a security officer at the Supreme Court, and he arranged for a kind of field trip.  About 30 of us piled into a bus one winter’s morning and drove up to DC, where we watched a morning’s series of arguments and then were ushered into a side-room to spend about 30 minutes asking questions of a Justice.  It turned out to be Scalia.

I was still very much a puppy, as were most of the people in the room with me.  I got the distinct impression that Scalia was bored with us; we certainly didn’t present much of a challenge or an opportunity to engage, but then somebody asked him a political question that he deftly turned into an exegesis on the place of law in society.

This little meeting took place only a year or so after Justice Thomas had been sworn onto the bench, and a lot of people were still marveling over what was back then an unprecedently  contentious and ugly confirmation process.  Somebody asked Scalia if he thought that maybe “politics” had gotten too involved with the Supreme Court, and whether this wasn’t tainting the Court’s authority.

Scalia said that, no, to the extent we were asking whether “politics” was now too much a part of the Supreme Court that of course it wasn’t.  Scalia asserted that the Constitution spells out exactly how the Supreme Court is to be populated, and that it involves nomination by the President and consent by the Senate.  And that therefore “politics” always was intended to be part of the process.

But – said Scalia – what he was concerned with was the idea that Americans, in watching this nomination/consent process unfold on their TeeVees, might begin to think that the key to understanding the Constitution could and would always be found in the views of the majority.  The Constitution, he said, and especially the Bill of Rights, is very much a counter-majoritarian document.  It doesn’t exist to enshrine the will of the majority, so much as it exists to protect the rights of the minority.

Now, I have to admit – I don’t think I took those words the way Justice Scalia intended them to be taken.  In hindsight, I think what Scalia was trying to get to was the idea that the Idea of the Constitution exists separately and apart from whatever today’s society thinks it should stand for.  I think, replaying that conversation in my head, that Scalia was attempting to backdoor an argument about “originalism” or whatever it is he now calls “making the Constitution say what I think it should say.” 

To my shame, I didn’t think at the time to ask him to reconcile this espoused view of the Constitution with his ruling in Smith.  I didn’t think of much at the time, quite frankly, but I was struck by that fairly simple observance:  the Constitution is a counter-majoritarian document.

* * *

Scalia’s words have come to provide a touchstone for me when considering the role of government and, say, the Occupy protests or the Faux News “War on Christmas.” 

For example, I have written here and here about the inherent illogicality of Judge McIntyre’s Order clearing the way for the eviction of Occupy Boston from Dewey Square.  What bugs me is that the judge obviously went out of her way to make a ruling that the order did not require – that “occupation” is not constitutionally protected free speech – but in order to get there she essentially declared that First Amendment free speech loses its protection whenever it goes on too long.  That is, you have the right to protest only insofar as you don’t bother the people you’re protesting against.  Nobody who understands that the First Amendment is first and foremost a counter-majoritarian construct could possibly believe this.  And yet, this was her ruling and it was hailed by many people on both sides of the argument as “well written.”

And as for the “War on Christmas” – sunovabitch.  I actually think that we might have averted this annoying little front in our never ending cultural war if only the Supreme Court had been a little harder on the religious majority of this country than they first were.  They waffled, years ago, and now we are paying the price.

Over at Whiskey Fire Thers recounts an experience at a restaurant where the waitress wished him and his wife a Merry Christmas, but did so in such a way as to make it seem that what she was really saying was “Merry Christmas and FUCK YOU if you don’t like it.”  My mother told me two weeks ago about being in a retail store buying gifts and watching some other customer engage in pretty much the same overloud, over-the-top display with the store cashier.  As Thers says, “thanks, Fox News, for deliberately using Christmas to make Americans resentful and suspicious of each other over bullshit.”

Here’s how I think it is supposed to work:  everybody gets to do whatever the hell they want religiously, and the government doesn’t pick sides.  More than that – if the government is going to get involved in religion at all then it should be more restricted when it comes to getting involved on behalf of Christianity.  Why?  Because most people in this country are Christians, and the Constitution is a counter-majoritarian document.  Tony Scalia told me so.

When the President wishes Muslim Americans “Happy Ramadan,” that doesn’t bother me because I know that most Americans are not Muslim.  Despite whatever the GOP Crazies want you to believe, American is under absolutely no threat of “creeping Sharia law.”  It just ain’t never gonna happen, and so long as you are not an insane person you already know that.  Same/same with Buddhism, or Judaism, or Hinduism, or Shintoism, or, really, any –ism.  Ain’t a chance in hell we’re all gonna wake up one day and find out that we’re living under a strange new religious theocracy.

Unless it is a Christian theocracy.  Because Christianity is different.  I am fond of saying that America is not a Christian nation, but that Americans are a Christian people.  And that’s fine, but the distinction between the people and the nation must be kept in mind.  The former is concrete, the latter is ideal.  The first is a manifestation, flaws and all, and the second is the form for which we strive.  The United States of America is a flawed construct, born of the Enlightenment and conceived in rationality.  We strive to be more than we are at the moment.

The Idea of America is an idea of a club where everybody can be a member.  But when the majority religious view starts becoming espoused by the government . . . well, that starts undercutting the Idea of America because it starts telling people who aren’t Christians that they don’t count as “real Americans.”

(Full disclosure.  I was raised in the Episcopal Church.  I was an acolyte for years and years and years.  I’ve read and studied the Bible, and at one point in my life I actually thought about becoming a priest.  That didn’t happen, and today I don’t really think of myself as a Christian at all.  Mostly because of all that Bible reading.  But I’m not anti-religion, I’m just pro­-Constitution.)

* * *

Under our common law system, no rules get created until somebody decides to pitch a fit.  In fact, our courts are famous for their “case or controversy” decisions – they do not exist to entertain hypotheticals.  Unless the litigants before the judge actually have a dispute involving real money or real legal rights, the judge will not consider the case; nobody who dons the robe wants to spend their days settling bar bets.

But what this means is that for decades – centuries even – nobody complained about, say, religious displays by the government.  Nobody thought to challenge that idea; it just was what it was.  It was what it always had been.  And so there were no legal rulings on this issue.

Post WWII and – especially – with the awakening of a ton of people (mostly the Civil Rights and Feminist movements, but also pacifists, Jewish groups and atheists), people began to challenge what had until then been a largely accepted consensus:   the American government celebrated Jesus, because most Americans celebrated Jesus.

And as people who previously had been completely marginalized began to speak up and demand their rights, they began demanding an abolishment of the expression of the majority’s religion as well.  Not – let me hasten to say – that they were demanding that suddenly nobody could mention Christmas, or Christ, or etc.  Just that the government could no longer give its imprimatur to a particular religion.  Again . . . everybody should be free to do whatever they want religiously, but the government should not be picking sides.

You would think that this wouldn’t be an issue, but of course it was.  Religious groups lost their minds over the idea that “religion was being hounded from the public square.”  (No, it wasn’t.  Religious people have the same right to put up religious displays in a public park as do the Occupiers have to stage their protests.)  Suddenly, “children couldn’t pray in schools.”  (Which is just silly; every kid facing a pop quiz has prayed in school.  The only thing that changed was that teachers could no longer force children to pray.)

When government displays were challenged on religious grounds, the Supreme Court essentially punted.  Refusing to draw clear black-and-white lines that a 5th grader could understand (I’ve seen the show; apparently this is our default cognitive level), the Court issued a number of confusing rulings the most pernicious of which was:  Christmas is a secular holiday, unless it isn’t

Truthfully . . . I actually think that probably was the correct call.  Millions and millions of Americans celebrate Christmas without ever thinking or bothering about Christ (I’m one of them).  We enjoy the gift giving and the holiday feasts, the parties and the general well-wishing.  It is nice to believe that we are all in this thing together, and to recognize how much we need and hold on to each other, how much joy we take in our communal connections.  When people wish me “Merry Christmas” I always say “Merry Christmas to you too,” and leave that encounter with a warm glow, because what I’ve just been told is that somebody wants only the best for me.  It’s a magical season because we make it a magical season, and that’s enough (for me; YMMV).

So the Supremes recognized that Christmas – without a reference to Christ – is a secular holiday celebrated in America and that this meant it was okay for government offices to have holiday decorations that were not overtly religious.  (The famous line of creche cases would go on to parse out what “overtly religious” means, and whether you can make constitutional a Christian tableaux by folding in a Menorah.  Oy vey!

Unfortunately, that only made the Religious Whackjobs nuttier.  How can you have Christmas without Christ?  Uhhmmmm . . . I dunno, how can you have Thursday without Thor?  You just do.

(h/t Tim F.)

* * *

If the Supreme Court had had any balls, it would’ve announced when the first challenge to government-sponsored religious activity hit it that this activity was unconstitutional.  Sure, it would’ve sucked for a coupla decades – exactly the same way desegregation sucked for a coupla decades – but we would’ve gotten over it.  And moved on with a clearer understanding of the separation of Church and State:  everybody gets to pick their own god, and the government doesn’t choose sides.

Now . . . In God We Trust is the official motto.  Why?  Technically, the Supreme Court has found that this is “secular.”  One Nation Under God is okay.  Why?  Technically, the Supreme Court has found that this is “secular” – hallowed by the usage of not much more than half a century before someone actually challenged it.

Again . . . I’m not anti-religious.  I’m just pro-Constitution.  I think it would be a lot easier for people to understand the role of government in religious affairs (i.e., it doesn’t have one) if the Supreme Court would stop trying to split the baby in order to give overtly religious observances a place in the public sphere that our First Amendment clearly does not want those observances to have.

Merry Christmas, everybody.

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