"For decades, both conservative and progressive Supreme Court Justices have recognized that one of the most important ways in which our Constitution protects religious liberty is by requiring government to stay strictly neutral toward religion. A Scalia-Thomas Supreme Court, however, would eradicate that protection. In a 1992 dissent joined by Justices Thomas, White, and Chief Justice Rehnquist, Scalia wrote that the First Amendment does not require government neutrality towards religion. (Lee v. Weisman) They argued, instead, that the government may promote prayer and religion, as long as it stops short of specifically favoring a particular sect or legally coercing participation in or payment for religious activity. On the current court, only two more votes are needed to make this radical view a reality.

The consequences of turning this Scalia-Thomas view into the law of the land would be devastating. Schools could mandate 'captive audience' prayer at graduations, in classrooms and at any other school activity, as long as they did not favor only one sectarian point of view. Young students could be told to bow their heads in vocal or silent prayer and, if they disagree, they could be told that they are not good citizens. States could require the teaching of religious creationism along with evolution, as Scalia urged in his dissent in Edwards v. Aguillard (1987). Police officers, judges, drill sergeants and others in positions of authority over adults could also foist their own religious views on captive audiences of adults. The familiar principle that government cannot take action that is ntended to, or does in fact, promote religion would be eliminated, as Scalia and Thomas suggested in a 1993 concurring opinion. (Lamb's Chapel v. Center Moriches Union Free School Dist.)

Justices Scalia's and Thomas' writings about government involvement in religion evidence complete disrespect for the legitimate rights and interests of people who are not religious and of believers of minority faiths. In Lee v. Weisman, they scoffed at the harm to religious liberty and freedom of conscience that resulted from imposing captive audience graduation prayer. Indeed, they noted that attendance was not required at the graduation ceremony at issue in Weisman and that therefore there was no 'penalty' involved in forgoing the ceremony altogether. The cavalier suggestion that children and families who oppose government-imposed prayer could simply skip graduation fails utterly to recognize the fundamental importance to the overwhelming majority of students and their families of this time-honored rite of passage.

Both Edwards v. Aguillard and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) reveal an additional threat that a Scalia-Thomas majority would pose to religious liberty. Scalia's writings in these cases demonstrate a radical view toward many religion cases and argue that an analysis of legislative intent should play absolutely no role in the adjudication of First Amendment cases. This Scalia position would pave the way for laws that, while neutral in their wording, are blatantly motivated by religious intent.

The Supreme Court is now closely divided on whether compelled tax dollars may be diverted to religious uses through such means as religious school vouchers and government funding of sectarian religious social services. A Scalia-Thomas majority would tip that balance and authorize spending public dollars on activities with an explicitly religious purpose or content. A Scalia-Thomas Court would even allow school district or municipal lines to be drawn so as to permit one religious sect to predominate (Board of Education of Kiryas Joel Village School Dist. v. Grumet, 1994). And as the lone dissenting voice from a denial of certiorari in a 1999 case, Justice Thomas wrote in favor of abolishing the prohibition against supporting pervasively sectarian organizations with public funds. (Columbia Union College v. Clark)

Finally, Justice Scalia would even allow tax exemptions for religious books and periodicals - even if non-religious publications were denied the same benefit. In 1989 Scalia dissented from a majority holding that it was unconstitutional for the government to provide a tax exemption for religious periodicals where similar exemptions were not allowed for non-sectarian publications and the exemption served no secular purpose. Even though the Texas law explicitly discriminated in favor of religious publications and effectively increased taxes on secular publishers by exempting religious ones, Scalia claimed that the law did not improperly favor religion. (Texas Monthly, Inc. v. Bullock) In short, a Scalia-Thomas Supreme Court would abolish religious liberty and church-state separation as we know it."

 

(Special Report: Courting Disaster: How a Scalia-Thomas Supreme Court Would Endanger Our Rights as Freedoms. Pages 41-43. Copyright June 2000, Washington, D.C. People for the American Way Foundation).