Justice Scalia, speaking at a time when gay marriage, public education, and the war on terror are creating cases that test the Establishment Clause of the First Amendment, chose the banquet of a large group of Orthodox Jews here to declare that the Constitution should not be read to "banish the Almighty from the public forum."
In a speech delivered last night from a dais on which he was surrounded by venerable, bearded rabbis dressed in black and wearing elegant hats, Justice Scalia drew a sharp distinction between America and Europe. But he decried what he saw as the Supreme Court's prevailing, if recent, jurisprudence that holds that government "cannot favor religion over nonreligion."
"That rule does not, of course, represent the American tradition," Justice Scalia said.
From the banquet hall at the Midtown Hilton, Justice Scalia spoke on the occasion of the annual dinner of the Agudath Israel of America. In attendance were hundreds of fervently Orthodox Jews. The police commissioner, Raymond Kelly, was present on the dais, too, seated three places away from the justice.
Members of the audience appeared so pleased to meet the justice that, during a smaller reception beforehand, a bodyguard from the U.S. Marshals Service called on people to allow Justice Scalia more space, as a crowd four people deep quickly enveloped him.
Before his speech, Justice Scalia tucked into a plate of salmon over noodles, even as a veteran Supreme Court advocate and Harvard Law classmate of his, Nathan Lewin, introduced the justice in a speech recorded in Fez, Morocco, and played across several screens throughout the banquet hall. The transmission of the speech was marred, making sections unintelligible and prompting Justice Scalia, who rarely turns down an opportunity for a quip, to exclaim that Mr. Lewin was "an easy act to follow."
The justice didn't make any radical departures from positions he has taken on the high bench, echoing language in his dissent in a 2005 case involving the displays of the Ten Commandments that two counties in Kentucky had installed in their courthouses. But his remarks appeared intended to inspirit and encourage the largest grass roots organization of fervently religious Jews in America, an organization that is engaged in the constitutional debate in the country on such issues as gay marriage, parochial schools, and civil rights for religious individuals.
Justice Scalia began speech last night, as he did his dissent in the Kentucky case, McCreary County v ACLU, by recalling President Bush's valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: "God bless America." Such a statement, Justice Scalia said, would be "absolutely forbidden" in many countries in Europe. Justice Scalia was in Rome at the time of the attacks, attending a conference of judges and lawyers.
Speaking last night, Justice Scalia cautioned the audience against being "so quick to believe" that the Jeffersonian principle of separation between church and state is represented by the "type of separation found in Europe." Justice Scalia noted approvingly that in America the Supreme Court has upheld tax exemptions for houses of worship as well as the constitutionality of allowing ministers to open legislative hearings with a prayer.
He lauded a 1952 opinion by Justice Douglas declaring: "We are a religious people whose institutions presuppose a Supreme Being." That opinion upheld a New York City public school policy of releasing students from class to allow them to attend religious schooling elsewhere. Justice Scalia, who is Catholic and grew up in Elmhurst, Queens, had received religious instruction under that policy.
In his opinion in the Kentucky case involving the Ten Commandments, which Justice Scalia did not directly cite last night, the justice encouraged his colleagues to draw a distinction between "the acknowledgment of a single Creator and the establishment of a religion." Noting that Islam, Judaism, and Christianity all believe that the Ten Commandments were given by God, Justice Scalia had written that displaying the Ten Commandments in a courthouse "cannot be reasonably understood as a government endorsement of a particular religious viewpoint."
Instead, Justice Scalia argued in that dissent, it was akin to "publicly honoring God," which he believes acceptable under the Establishment Clause of the First Amendment, which states that Congress shall make no law respecting an establishment of religion.
In his jurisprudence, Justice Scalia has sought to limit the number of Establishment Clause cases that the Supreme Court hears. In a decision last year, Justice Scalia and Justice Thomas called on the court to overturn a precedent that allows any taxpayer to go to court to challenge a government program that is alleged to promote religion.