Friday, August 18, 2006

Munoz on Scalia's Dissent in McCreary:

From the same Vincent Phillip Munoz article. I wanted to devote an entire post to this. As I noted before, something seemed wrong with Justice Scalia's analysis in his dissent in McCreary. A fair reading of it seems to imply that some religions receive more constitutional protection than others. While I've heard some folks argue that when the Founders used the word "religion" they meant "Christian" or perhaps even "Protestant Christian," Scalia intimated that the Abrahamic monotheistic religions -- Judaism, Islam, and Christianity, or the religions that follow the Ten Commandments -- received greater protection under the Establishment Clause than religions outside of such tradition. And that notion is entirely without foundation in the text or history of the Constitution.

As Justice Scalia wrote: "With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."76

Here is Munoz's response:

His use of the word "disregard" suggests that the groups mentioned are not protected by the Establishment Clause or that they are protected differently than monotheists. But this suggestion is inconsistent with Justice Scalia's own legal coercion approach to the text.162 Presumably, under the legal coercion standard approach, all non-coercive public acknowledgments of religion -- whether monotheistic, polytheistic, or atheistic -- would be constitutional. Thus understood, the Establishment Clause would no more disregard polytheistic religious acknowledgements than it would monotheistic ones. America's tradition of non-denominational, monotheistic religious acknowledgements does not imply that only monotheistic acknowledgements are permissible today; rather, it indicates that many -- if not most -- of the men who wrote the Constitution did not think religious acknowledgements of any sort violated the First Amendment. The absence of a long American tradition of specifically Catholic or Jewish religious acknowledgements clearly does not indicate less Establishment Clause protection for these faiths, so Justice Scalia's singling out of polytheists, believers in unconcerned deities, and atheists for "disregard" seems unnecessary. His suggestion of different levels of Establishment Clause protection for different religious beliefs is contrary to both the text and the best of America's traditions.

Brilliantly put: Munoz's analysis is at once consistent with his notion that Establishment Clause erects a very low barrier between Church & State and that the religion clauses protect all religions, including atheism, equally.

To put Munoz's argument in Scalia's terms, the Establishment Clause, properly understood, and with regard to religious acknowledgements, permits this disregard of anyone's religious convictions, even the cherished traditional ones.

In shifting to a "legal realist" mode of analysis, I wonder whether, if we adopted Munoz's understanding of the EC, when government then inevitably "disregards" the consciences of traditional Christians, whether such conservative critics of modern Establishment Clause jurisprudence would be happy with the results.

The politics of republican federalism can be a strange thing. Not all "acknowledgements" would look like Roy Moore's. Conceivably, Utah might "acknowledge" itself as "The Mormon State" and "endorse" Mormonism over ordinary Christian sects. A disproportionate Muslim-American town in Michigan could make public supplications to "Allah." Or a Unitarian dominated town in Vermont could erect a monument endorsing Unitarianism over Trinitarianism; they might, in order to invoke Founding principles and pay homage to Roy Moore, put the Declaration of Independence on the stone and then quote from writings of the Jefferson, Franklin, and Adams -- the authors of the Declaration and all unitarians -- how irrational, absurd and incomprehensible the doctrine of the Trinity is. Indeed, they might want to include John Adams's 1813 letter to Jefferson where he states the Trinity is so unreasonable that had God himself revealed the doctrine to him, he would have still disbelieved it. At worst, an atheist town could erect a monument stating, "under no God." And all of these would be constitutionally permissible under such an original understanding of the Establishment Clause.

Would such a constitutional understanding "fly" among orthodox believers in a "legally real" world?


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