Michael Newdow – Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?
Dr. Michael Newdow, an attorney and physician famous for his litigation on church-state issues from an atheist perspective, and and previous article contributor to ReligiousLiberty.TV, has now published an important law review article for the Capital University Law Review that discusses the history of American religious freedom and tolerance and why the majority should carefully consider the rights of the minority. Although one might disagree with his religious viewpoint, Newdow argues for people to be treated equally, regardless of what religious viewpoint they hold.
Here is an excerpt:
In reviewing the history of the religion clauses of the Constitution, onecan take two paths. One supports the basic ideal underlying ourconstitutional framework: equality, which is inclusive and is based onrespect for all religious opinions. The other leads to exclusion byadvocating for one or more non-universal religious views. The first reflects the Framers’ goals for guaranteeing liberty to all. The other guarantees liberty only to those who muster the political might to use the state’s machinery to advocate for their religious beliefs. The first exists to protect every individual. The other focuses on the fact that the white, male, property-owning Framers believed in God, and thus concludes thatthe magnificent document they created “permits the disregard” of religious minorities with alternative beliefs.
Why would anyone choose that latter path? Why go out of the way to“permit the disregard” of a minority when such a notion is nowhere to be found within the text of the Constitution, and a historical reading can as readily and more nobly support the equality principle? What sort of American patriot, citizen, or public servant would work towards such an end?”
The entire article, which is well worth reading, is available in PDF format for free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on “One-Click Download” once you follow this link to download the entire document for free.)
In June 2005, Justice Antonin Scalia contended that ‘the Establishment Clause…permits the disregard of devout atheists.’ This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.
This article takes three approaches in considering the Justice’s argument. First, recognizing that Justice Scalia prides himself on being a ‘textualist,’ it considers the Establishment Clause’s text (‘Congress shall make no law respecting an establishment of religion’). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.
Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on “One-Click Download” once you follow this link to download the entire document.)