Law School Discussion

Scalia on religion


Re: Scalia on religion
« Reply #1 on: October 06, 2014, 01:12:50 AM »
I think that if we're using Scalia's "originalism," we'd look at the Founders and realize they were deists, who didn't believe God intervenes at all after setting the world into motion. So, I don't think it would be a huge stretch according to his actual theory that they would be just as happy with agnosticism or atheism or pastafarianism. Pastafarianism would certainly seem to be a good way to "practice" atheism with 1st amendment protection, but I wonder about the MOVE series of cases where they added the sincerely held element to the test.

Realistically, it seems pretty clear that the current Court and some in the past would read the Free Exercise clause as benefitting religion over non-believers/non-practicers.

This is somewhat reflective of a larger tension between the Free Exercise and the Establishment clauses.

Nice comparison of his cushy and powerful job on the Supreme Court to the journey to Mt. Doom.

Re: Scalia on religion
« Reply #2 on: October 06, 2014, 11:19:40 AM »
It's an interesting question. What is the scope of the Establishment Clause?

I suppose in the most basic sense Scalia is correct. The EC does not prevent the government from ever favoring religion, it only prohibits an establishment of religion. Presumably, there are situations in which religion could be favored over non-religion, but the favoritism would result in something less than an establishment of religion.

The issue I have is that Scalia is willing to pretty far before he considers it an improper establishment. For example, I don't have a problem with Christmas trees in public schools, but Scalia doesn't have a problem with prayer in schools. Again, I think the issue is scope.

As far as whether the Constitution actually favors religion, that's a tougher question. The First Amendment clearly protects religion, but the EC seems to act as a counterweight.

I guess I fall somewhere in the middle. I'm not sure if the intent of the First Amendment was to necessarily favor religion (as Scalia has argued), but I'm also not convinced that the EC prohibits any favoritism (as some secular organizations argue).

Although I'm a secularist, I find the Pastafarian/Spaghetti Monster stuff childish and annoying. I don't think the Constitution entitles the Pastafarians to place a display next to a Nativity scene on public property. Why? Because one is a satirical construct and an expression of political sentiments, not a sincerely held religious belief. As a political statement Pastafarianism enjoys First Amendment protection, but that doesn't mean that they are entitled to disrupt protected religious expression.

barprephero

Re: Scalia on religion
« Reply #3 on: October 06, 2014, 12:22:59 PM »
I think that if we're using Scalia's "originalism," we'd look at the Founders and realize they were deists, who didn't believe God intervenes at all after setting the world into motion. So, I don't think it would be a huge stretch according to his actual theory that they would be just as happy with agnosticism or atheism or pastafarianism. Pastafarianism would certainly seem to be a good way to "practice" atheism with 1st amendment protection, but I wonder about the MOVE series of cases where they added the sincerely held element to the test.

Realistically, it seems pretty clear that the current Court and some in the past would read the Free Exercise clause as benefitting religion over non-believers/non-practicers.

This is somewhat reflective of a larger tension between the Free Exercise and the Establishment clauses.

Nice comparison of his cushy and powerful job on the Supreme Court to the journey to Mt. Doom.
Had to research the pasta thing, I also looked up MOVE but found something that I doubt is what you were talking about (crazy *&^% though-and started as religious based all the same)
http://en.wikipedia.org/wiki/MOVE

barprephero

Re: Scalia on religion
« Reply #4 on: October 06, 2014, 12:25:54 PM »
It's an interesting question. What is the scope of the Establishment Clause?

I suppose in the most basic sense Scalia is correct. The EC does not prevent the government from ever favoring religion, it only prohibits an establishment of religion. Presumably, there are situations in which religion could be favored over non-religion, but the favoritism would result in something less than an establishment of religion.

The issue I have is that Scalia is willing to pretty far before he considers it an improper establishment. For example, I don't have a problem with Christmas trees in public schools, but Scalia doesn't have a problem with prayer in schools. Again, I think the issue is scope.

As far as whether the Constitution actually favors religion, that's a tougher question. The First Amendment clearly protects religion, but the EC seems to act as a counterweight.

I guess I fall somewhere in the middle. I'm not sure if the intent of the First Amendment was to necessarily favor religion (as Scalia has argued), but I'm also not convinced that the EC prohibits any favoritism (as some secular organizations argue).

Although I'm a secularist, I find the Pastafarian/Spaghetti Monster stuff childish and annoying. I don't think the Constitution entitles the Pastafarians to place a display next to a Nativity scene on public property. Why? Because one is a satirical construct and an expression of political sentiments, not a sincerely held religious belief. As a political statement Pastafarianism enjoys First Amendment protection, but that doesn't mean that they are entitled to disrupt protected religious expression.
There are court cases saying we can't look into if a religion is reasonable only if they have sincere belief in it. So, for most I would agree that they are doing it to mock and thus not sincere. A could see some nutjob for real into something like it though. Think about the crazy homeless people talking into shoes.

As for more established faiths I think the main arguments now days are "ceremonial deism" and for historical reasons.

Re: Scalia on religion
« Reply #5 on: October 06, 2014, 01:46:26 PM »
I think that if we're using Scalia's "originalism," we'd look at the Founders and realize they were deists, who didn't believe God intervenes at all after setting the world into motion. So, I don't think it would be a huge stretch according to his actual theory that they would be just as happy with agnosticism or atheism or pastafarianism. Pastafarianism would certainly seem to be a good way to "practice" atheism with 1st amendment protection, but I wonder about the MOVE series of cases where they added the sincerely held element to the test.

Realistically, it seems pretty clear that the current Court and some in the past would read the Free Exercise clause as benefitting religion over non-believers/non-practicers.

This is somewhat reflective of a larger tension between the Free Exercise and the Establishment clauses.

Nice comparison of his cushy and powerful job on the Supreme Court to the journey to Mt. Doom.
Had to research the pasta thing, I also looked up MOVE but found something that I doubt is what you were talking about (crazy *&^% though-and started as religious based all the same)
http://en.wikipedia.org/wiki/MOVE

Not sure if that's it or I am misremembering case name. It was a somewhat controversial philosophy, like MOVE, that many adherents claimed was a religion. Then there was a decision where the Supreme Court said it had to be sincerely held, equivalent to a religion, but not necessarily exactly a religion...eh, I don't have time to research the case names today but those were the general issues.

barprephero

Re: Scalia on religion
« Reply #6 on: October 06, 2014, 02:47:44 PM »
Its ok, I get what you mean. Only 1L gunners and Profs care about exact citation on non legal documents.  ;)