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Richard Cohen

Supreme Zealotry

By Richard Cohen
Tuesday, March 8, 2005; Page A15

Justice Antonin Scalia, who believes in miracles, is one himself. Coming up on 20 years on the Supreme Court and many more in Washington, he nonetheless has retained the ability to write and speak in plain English. So it was no surprise that Scalia insisted last week that the Ten Commandments were not, as some argued, a mostly secular statement of only incidental religious meaning but rather a mostly religious statement of only incidental secular meaning. In the spirit of the Commandments, he told the truth.

That's not always the case. The standard lie about the display of the Ten Commandments is that they are not really religious. They are supposedly akin to the phrase "In God We Trust" on the coins of the realm or even the Ten Commandments at the high court itself, a rendering abridged so that the religious content is redacted. The rest, stuff about adultery and thievery and murder, is retained -- not that it has done much good.

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There is a pattern to these cases. First someone gets the bright idea to put God back in the (fill in the blank) schoolhouse, courthouse, etc. A religious display is ginned up for the occasion. A lower authority intercedes, citing the Constitution and separation of church and state. After a good deal of back and forth, the religious display is either altered or secularized by proximity to other displays. So, if it is Christmas time, we get a crèche and a figure of Rudolph. This is supposed to transform the site, keeping it religious in the eye of the average beholder but secular to a court supposedly composed entirely of dummies. It was precisely the dummy that Scalia refused to play.

Scalia was, as usual, insisting on calling a spade a spade. "I mean, if you're watering it [the Ten Commandments] down to say that the only reason it's okay is it sends nothing but a secular message, I can't agree with you," he told a lawyer for the state of Texas. He then committed an additional act of candor that was more troubling than enlightening. Not only did he find the Ten Commandments to be religious, he asserted that they were "a symbol of the fact that government derives its authority from God." Oh yeah, Who says?

In fact, his "fact" is not a fact at all. It cannot be proved. It is a matter of faith. It would have been one thing for Scalia to have said that the Founding Fathers probably saw things his way but it is quite another thing for him to assert a belief and call it truth. Even the signers of the Declaration of Independence might have balked at such a statement. They asserted that "governments are instituted among men, deriving their just powers from the consent of the governed." That is a bold statement, but not religious in the least.

Scalia's candor is a wonderful thing. He is a devout Roman Catholic, and in 2002 he set out his philosophy in the journal First Things. He cited Saint Paul in Romans 13:1-5: "government . . . derives its moral authority from God." Scalia repeated that formula one way or another several times in his essay, leaving absolutely no doubt about where he stands. This is a learned and religious man.

But it is not my religion -- or maybe yours. And I wonder how Scalia himself would feel if, instead of the Ten Commandments, a representation of another religion were placed in the courthouse lobby. I wonder how he would feel if somewhere in America Muslims or Buddhists or Hindus became the majority and decided to change the prayer for the opening of court or hang a religious symbol -- one, of course, that the jurisdiction's lawyer would say was basically secular -- on the wall behind the judge. Would he feel comfy?

Maybe. I cannot answer for Scalia. And I appreciate what he says about the benign qualities of these symbols. It's still sticks and stones that break bones, not representations -- and proselytizing is the real issue. But that's here and now -- and not the future. What might be coming -- coming here and already present elsewhere -- is something that could look more like the past, with its religious zealotry and fanatical intolerance. The "fact" that Scalia cites cannot be proved or refuted. All such "facts" are mere beliefs, hardly obnoxious to me but abhorrent to others, resistant to compromise and maybe sufficient reason for violence. Government neutrality -- rigorous secularism -- is the way to go. Scalia says what others will not. That's commendable. But others will do what he will not. That's frightening.


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