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Earl Doherty

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Scalia in shul: State must back religion

     US Supreme Court Justice Antonin Scalia used an appearance at an Orthodox synagogue in New York to assail the notion that the US government should maintain a neutral stance toward religion, saying it has always supported religion and the courts should not try to change that.

     Speaking at a conference on religious freedom in America on Monday hosted by Manhattan's Congregation Shearith Israel, the oldest Jewish congregation in North America, Scalia said that the founding fathers never advocated the separation of church and state and that America has prospered because of its religiousness. "There is something wrong with the principle of neutrality," said Scalia, considered among the court's staunchest conservatives. Neutrality as envisioned by the founding fathers, Scalia said, "is not neutrality between religiousness and nonreligiousness; it is between denominations of religion." Scalia cited early examples of support of religion in the public sphere by George Washington, Thomas Jefferson, and Benjamin Franklin, the last of whom went so far as to argue at the Constitutional Convention in 1787 for the institution of daily prayers. Today, Scalia noted, the government exempts houses of worship from real-estate tax, pays for chaplains in Congress, state legislatures, and the military, and sanctions the opening of every Supreme Court session with the cry, "God save the United States!" "To say that the Constitution allows the court to sweep away that long-standing attitude toward religion seems to me just wrong," he said. "I do think we're forgetting our roots."

     Scalia's speech, at a conference marking the 350th anniversary both of Jews in America and of Shearith Israel, elicited a standing ovation. Scalia was nominated to the nine-member Supreme Court in 1986 by president Ronald Reagan to fill the seat vacated by William Rehnquist, who became the chief justice after Warren Berger retired. Now, with speculation that Rehnquist is on the verge of retirement after a recent diagnosis of thyroid cancer, Scalia may be the leading candidate to take his place. It is widely believed that President George W. Bush will appoint a staunch conservative as chief justice if he gets the chance, and the only other Supreme Court justice considered sufficiently conservative is Clarence Thomas, appointed by president George H.W. Bush.

     Originally from New York, Scalia wore a black skull cap as he addressed the congregation with his back to the ark. "The founding fathers never used the phrase 'separation of church and state,' " he said, arguing that rigid separation of religion and state – as in Europe, for example – would be bad for America and bad for the Jews. "Do you think it's going to make Jews safer? It didn't prove that way in Europe," he said. "You will not hear the word 'God' cross the lips of a French premier or an Italian head of state," Scalia said. "But that has never been the American way." Most establishment Jewish groups, however, are staunch supporters of church-state separation. Earlier this month, for example, the American Jewish Committee was part of a coalition that won a lawsuit to block a Florida program allowing state aid to go to parochial schools. In 2000, the Anti-Defamation League led several Jewish groups in criticizing vice presidential candidate Sen. Joseph Lieberman for talking too much about God on the campaign trail.

     Scalia said expunging religion from public life would be bad for America, and that the courts, instead, should come around to most Americans' way of thinking and to the founding fathers' vision for the US. He noted that after a San Francisco court last year barred the recitation of the Pledge of Allegiance in public schools because it includes the phrase "under God," Congress voted nearly unanimously to condemn the decision and uphold use of the phrase. "I suggest that our jurisprudence should comport with our actions," he said. If America's approach toward religion does change, it should be through democratic process, not "judicial fiat." America believes in "a personal God who takes an interest in the affairs of man," Scalia said. Quoting a line from Psalms that says the faithful will surely prosper, he added, "I think it is no accident that America has prospered."

E.D.: Apparently, Justice Scalia fails to understand that a Constitution is designed to protect the country and its citizens from the way the majority believes and behaves, not to be governed by it. If majority "thinking" and "actions" determined political rights, a lot of people and minority groups would be in deep trouble. A Constitution is supposed to be above whatever the current or even traditional majority expression might be, and there are many jurists who interpret the U.S. Constitution as being just that. That a Chief Justice should hold and voice these opinions is a frightening failure of the judicial system, or of the political system that feeds the court its appointed members.

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