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Justice Scalia's Religious Opinions

by Cleo and Hank Kocol

Supreme Court justice Antonin Scalia's jurisprudence regarding the First Amendment has sparked controversy. What do jurists think of Scalia's decisions regarding religion? Recently three law professors from the Mainland participated in a symposium at the University of Hawaii in Honolulu. The panelists were: Erwin Chemerinsky, University of Southern California; Kathleen M. Sullivan, Stanford Law School; and William K. Kelley, Notre Dame Law School. Chemerinsky is the author of over ten books on Constitutional Law issues, and one of America's pre-eminent Constitutional scholars. Sullivan, listed in the National Law Journal as one of the fifty most influential women lawyers in American, is a top Constitutional scholar and litigater who has argued before the U.S. Supreme Court. Kelley served as law clerk to Kenneth Starr, Warren Burger, and Antonin Scalia; he was also assistant to the Solicitor General, U.S. Department of Justice.

During opening statements, Chemerinsky maintained that Scalia flip-flops when a case has issues concerning his beliefs. According to Chemerinsky, Scalia's philosophy, called "original meaning," puts the Republican platform and the framers' intent in line with Scalia's beliefs. Scalia believes in majority rule, giving no protection to minorities in areas of religion. It concerns Chemerinsky that Scalia frequently uses sarcasm against the opinions of his fellow Justices. He throws around terms such as "ludicrous," "beyond absurd," "preposterous," "ridiculous," and has used the words "vandalizing the court." At one time, he said that Justice O'Connor's opinion was "the least responsible of all."

Sullivan defined the four possible positions on the Establishment and Free Exercise Clauses. One can be strong or weak on either clause. She defined Scalia as being weak on both clauses. Justice Stevens holds the "secularist" position, that religion is vestigial in modern life; he is strong on Establishment and weak on Free Exercise. Sullivan said that Scalia is biased toward majority rule and believes that this position is based in the Constitution. As a man of faith, he is sympathetic to minority religious practices and some of his opinions have supported minority religions. He maintains, however, that minority rights are already secured through the political process. He maintains that religion is a strong force in American life.

Kelley said that it was difficult to say where the line exists between permissible and non-permissible accommodation of religion. He also said that one faith was not harmed by accommodation to other faiths and that judges should not be the be-all and end-all of protecting religious rights.

In the Question-and-Answer period following the introductory remarks, the question of military chaplains was brought up. The panel agreed that there is a place in the military for chaplains, that those in the military most often did not have access to clergy. But, the panel also agreed that chaplains for legislatures are not necessary because legislators are free to see the clergy at any time.

Chemerinsky and Sullivan agreed that a public subsidy to religion through school vouchers could be the start of a slippery slope. As an example, they asked, "How can one say that the money will go only for secular activities rather than to religious indoctrination?" They felt that school vouchers would become a total subsidy to religion. Chemerinsky, when asked how the current court would vote regarding vouchers, said that he believed it would uphold vouchers. Kelley believes that vouchers would be upheld if the system is sponsored by private groups, rather than by government; he believes that government-sponsored vouchers would be in violation of the Establishment Clause.

The panel discussed the Religious Freedom Restoration Act (RFRA). They all agreed that if such a law were passed in an individual state, that law may be legal and binding depending upon that state's Constitution. It may be the right of Congress to pass such a law for the nation. All of this was speculation on the part of the panelists. The more liberal members of the panel said that the RFRA could be seen as an establishment of religion.

Kelley described Scalia's original intent argument as holding that the Constitution means today exactly what it meant in 1789 when it was written. Sullivan pointed out that the Constitution says "he" when discussing the President, and thus, this interpretation would forbid a woman from running for the Presidency. Chemerinsky also agreed that the interpretation of the Constitution must change with the times.

In an issue important to Hawaii with application to the entire nation, a question arose concerning religious symbols on the doors of state legislators in the Capitol corridors.* O'Conner's opinions seem to hold that the test is the "reasonable observer" rule - "What would a reasonable observer think? Would he/she think that such symbols are a reflection of government support of religion, or simply that of the individual legislator?" She maintains that the observer would see the legislator's, not legislature's support. This seems to reflect the current thinking of the Court. Sullivan added that she agreed that that would be the interpretation, but that her opinion is that all posters and christmas trees should be removed from government property.

An audience question addressed an issue of geothermal drilling on sacred Hawaiian lands. The question was, "How does one prove religious beliefs?" The local court required proof of injury to the god Pelee whose property that was. The difficulty of an answer in such a case only proves the authors' stance for the strict separation of state and church.

*Mitch Kahle, President of Hawaiian Citizens for the Separation of State and Church, and a personal friend, was viciously attacked by a legislative aide at the Hawaii Capitol Building last year while Mitch removed such religious symbols from office hall doors.

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