Rest In Peace, Nino Scalia – But! March 7, 2016

Antonin Scalia [1936-2016] was one of the best loved judges for his wit, and hated for his legal reasoning.  For the most part, he was a hero to those who wish to uphold the text of the United States Constitution as opposed to those who wish to read fantastic things into it.

But I am going to break the rule of ‘speak nothing but good of the dead’ and point out a few errors that I believe Antonin Scalia made.  There was, of course, the egregious Citizens United, but there were also the cases that affirmed that the Second Amendment affirmed an individual right to own certain kinds of weapons, in blatant disregard of the fact that the text gives us the right to participate in a ‘well regulated Militia’, whatever that is.

But the most outrageous decision he made was the one in Employment Division vs Smith.  That was the ‘peyote’ decision.  I call it outrageous because in the Prohibition years, his own church, the Roman Catholic Church, was the beneficiary of a very similar exemption. Wineries stayed open just to make ‘sacramental wine’.  Evidently grape juice does not transubstantiate.  He could have extended the same courtesy to the Native American Church.  I believe that in this society we are to treat other religions by the Golden Rule, as we Christians would want to be treated.  [Driving under the influence of either ‘transubstantiated’ wine or peyote is a public safety matter, however, and should not be protected.]

Clarence Thomas was actually better on this decision.  John Eastman explains his own views.  The presupposition of his view, and that of the Claremont Institute as a whole, is that the Declaration of Independence is a constitutional law that stands above the Constitution and interprets it.

Mark Silk has denounced Scalia for his actual negative stance on religious liberty.  It’s interesting to remember that RFRAs and RLUIPAs originated not about discrimination against gay couples or anyone else. They originated as a response to land use law, which was piling burdensome costs on religious agencies trying to fulfill their religious and charitable duties that they believed their Gods were commanding them to do. And land use law is one of our passions here at Blue Kennel.  Scalia and Thomas actually sort of switched positions on the Abercrombie headscarf case, as Noah Feldman informs us.

My own belief is that (a) we all answer to a higher Authority than the state, and religious liberty is partly about that; but (b) in a society like ours, we must treat other religions, even though we believe them to be false, the way we Christians wish ours to be treated.  And it’s not just moralistic; you don’t want to give the government a legal weapon against Muslims, for example, that can be turned around later and used against Christians!

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