January 4, 2009

Scalia was essential to morality

At the outset of an article in the Fall 2008 Marquette Law Review entitled, Accommodating Respectful Religious Expression in the Workplace, University of Denver professor Nantiya Ruan quotes approvingly from U.S. Supreme Court Justice Antonin Scalia thus:
"[M]orality [i]s essential to the well-being of society and ... encouragement of religion [i]s the best way to foster morality."
What's initially remarkable is how the article's author fast forwarded this sentiment 207 years via square bracketing. Here's what Justice Scalia actually declared, in his dissent to McCreary County v. ACLU, one of a pair of Ten Commandments cases decided in 2005:*
Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.
And he was (nor is) not, as Prof. Ruan claims (or claimed) in her footnote, "citing the Framers of the United States Constitution."

If he was citing anything other than prior opinions of his own black robed colleagues, it was the Northwest Ordinance of 1798:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Clever how Scalia left out knowledge, which may be completely divorced from religion. Perhaps because knowledge often undermines religion, ultimately leads many away from religion, or even forces religion to recalibrate its own central dogmas (Copernicus, anyone?).

So can morality be divorced from religion, for that matter.

While nobody would contest the role religion has played and does play in American society, the notion that religion is necessary to the ordering of government is spurious enough. (Maybe in Iran.)

That it's necessary to morality is, frankly, a profoundly offensive proposition to lots of non-participants in religion who nevertheless partake constantly in morality without religion at all.

Isn't that, at bottom, what American law is?

In a typically McDreary v. ACLU recitation of what the Framers "believed" — this coming from the venerated arch-textualist — Justice Scalia delivers his support for government endorsed religion based on a "because they always did it that way" hypothesis.

I say dreary because more than one can play at the Framers-quote game, and there's plenty of hostility toward religion — and the clergy especially — to be unearthed among those esteemed gentlemen.

But support for religion is found nowhere in the Constitution.

Further along, Prof. Ruan repeats Scalia's dictum, asserting, "more than any other, [this quote] signals the Court's likely journey forward: encourage religion in order to foster morality in our world."

And this is an appropriate role for the U.S. Supreme Court? Again, one would be hard pressed to find any such intimation in Article III.

Some "knowledge" to bear in mind, perhaps, in light of any forthcoming allegations of "liberal judicial activism" and "legislating from the bench" issuing from the ardent disciples of Justice Scalia.

92 Marq. L. Rev. 1 (.pdf; 32 pgs.)

* Following his legally irrelevant recollection of a personal European vacation anecdote and a citation to foreign law — that of France, no less — and in an opinion almost entirely given over to a plauditory endorsement of one particular religion: his own, Christianity (assuming, arguendo, that trinitarianism equals monotheism).

P.S. Thanks to Prof. O'Hear for the link.


Dad29 said...

Hate to burst your bubble, bubbles, but Copernicus, et.al., did NOT change "a central dogma."

The spin of the sun, or the earth, is not "dogmatic." Not now, not ever.

illusory tenant said...

As a result of the collapse of geocentrism, which she has come to accept, the Church is now caught between her historico-dogmatic representation of the world's origin, on the one hand, and the requirements of one of her most fundamental dogmas on the other — so that she cannot retain the former without to some degree sacrificing the latter. ...

There are times when one almost despairs of being able to disentangle Catholic dogmas from the geocentrism in the framework of which they were born.

Take it up with Fr. Teilhard, Bucky.