Remembering Antonin Scalia
Justices Scalia and Ginsburg in India, 1994 |
As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it…when we wish to uphold a practice it forbids, we ignore it entirely. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
If religion in the public forum had to be entirely non-denominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.
A Group Blog on American Religious History and Culture
Source: http://usreligion.blogspot.com/2016/02/remembering-antonin-scalia.html
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