I recently wrote a letter to New York Sun Times in response to an article they had written about Anton Scalia's position on religion. The letter was published and I am very happy with it as it appears in print. I figured that a diary here would be a good place to further expand on what I have written. The letter is included in full below followed by further analysis on my part.'Scalia Decries Drift of Court Over Religion'
Regarding "Scalia Decries Drift of Court Over Religion," over the past 100 years, the Supreme Court has been slowly but painfully attempting to establish a clear standard to determine whether an action of government violates the Establishment Clause [National, "Scalia Decries Drift of Court Over Religion," June 2, 2008].
Despite pronunciations of both extremes that have found their way into cases such as the quote Mr. Scalia praises from Zorach v. Clauson, or the assertion that "we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion" in Everson v. Board of Education, the court has gradually worked to establish fair principles that can be predictably applied.
One of the clear standards that has been featured since the 1960s is the notion that laws can not favor one religion over another or religion over non-religion.
This has been a key component of the Lemon test, which has been applied as recently as 2000. Simply to declare close to 40 years of precedent null and void merely because it does not lead to favored outcomes is judicial activism at its ugliest and most degrading.
Justice Scalia can either defend extreme revisionist history or be a true judicial conservative — he cannot consistently try to do both.
DANIEL ORTNER
Waltham, Mass.
Letters to the Editor- June, 9, 2008; Daniel Ortner
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I would of course like to begin my further explication by stating my position on the issue of church and state separation. I am an Atheist/Humanist and therefore have strong feelings about church state separation as a vital basis of our society, but at the same time I tend to be moderate on some issues. I actually support the allowance of bible clubs to be formed by students at public schools and as a college student enjoy the vibrant atmosphere that religious publications bring to a campus. I am marginally indiferent to true ceremonial deism such as the "In God we trust" on the coins, but aghast at the use of God in the pledge of allegience because of its origin as a religious propoganda tool against the Soviets.
Most importantly, I believe that the Supreme Court is neither the one pure agent of social change in society, nor the reactionary stopgate on the will of the people. In my eyes, the function of the Supreme Court is to continually advance the law and society through the use of clearly defined yet expansive principles of Justice. More important than social reform is some degree of continuity, or, as Legal Political Philosopher Ronald Dworkin would put it, some degree of legal integrity.
It is with this in mind that I view Scalia's disregard of basic legal principles with such despair. Scalia seems to have declared through his words that no principles of justice holds any true meaning, no precedent holds weight, but for the nebulous will of the people.
Even worse, this principle has already proven itself dubious throughout history.
In the 20th century, legal populism began as a theory based on the will of democratic majorities. In contrast to big buisness favoring courts who struck down popular legislation such as minimum wage laws under the justification of substantive due process, it emerged as a force bound by social forces and considering a myriad of factors. However, this legal theory, even started with the best intentions soon degraded into a mmess of liberty denying legislation and rulings. The Supreme Court struck down free speech continually throughout the period of the first world war and justified sterilization in Buck v. Bell, at the behest of eugenics boards that had been established. My state of Massachusets upheld forced sterilization laws for dubious public health concerns, and violated beliefs, both religious and non religious. All of these violations of rights were massively popular and essentially lead by the will of the people acting through progressive era reforms of government.
The revolution that transformed the court in the mid to late 20th century was one which sought to balance the worst tendancies of democracy with principles guidelines. Individual rights became a protected bastion, this concept has stretched from cases that are anathema to the religious right, such as Roe V. Wade and Bowers v. Hardwick, to the religious cases in the 90's which upheld bible clubs etc as protect under free speech, a widely praised decision by the right.
I sometimes wonder if those arguing for such a reactionary position truly have considered what it would mean. With our basic principles of individual liberties being tossed at the whim of a majority, we are placed at a perilous precipice. Utterly destructive policy that degrades human liberty can come from both progressive movements of the left and reactionary fascists on the right.
This is the transformation that the reactionaries on the court wish to end. It is not merely a matter of direction, but one of fundamental construction. History has shown that the majority is not the best guardian of individual rights. This is why we have a bill of rights in the first place, with a supreme court that has developed the power to strike down dubious and deviant legislation. This debate is not really about Judicial Activism, but one that strikes at the heart of our values as a nation.