Scalia taunts the unbelievers

Via Ron Lindsay on Twitter, I’m reading Scalia’s dissent (joined by Thomas) in a case decided today, ELMBROOK SCHOOL DISTRICT v. JOHN DOE. It starts on page 10.

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky.

He sounds like a Twitter harasser. That’s the kind of person who trivializes objections to sexist or racist taunting into merely being “offended.” That’s childish. It’s not that we’re merely “offended” by public displays of religion and it’s not comparable to disliking a brand of music. Music doesn’t try to tell us all what to do! If it did try it would fail. Scalia’s wording is an insulting trivialization.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays tobe enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

The First Amendment explicitly favors religion? He must mean the free exercise clause, which protects religion as opposed to favoring it, and also follows upon an explicit banning of the establishment of religion – so it doesn’t really “favor” it does it.

Moving ahead to page 14 –

It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution. It may well be, as then-Chief JudgeEasterbrook suggested, that the decision of the Elmbrook School District to hold graduations under a Latin crossin a Christian church was “unwise” and “offensive.” 687 F. 3d, at 869 (dissenting opinion). But Town of Greece makes manifest that an establishment of religion it was not.

So we get to force religion on you from now on whether you like it or not so ha!


  1. brucegee1962 says

    Could you give us a link to a summary of the case, as well as the actual decision? Without knowing the background, the legalize is pretty daunting.

  2. says

    And what did our founding fathers say about playing music in public?

    As opposed to the fact that they did say something about religion.

    Scalia isn’t even a good arguer.

  3. Shatterface says

    Music doesn’t try to tell us all what to do! If it did try it would fail.

    The last time music made me do what I didn’t want to do it made me do the Funky Chicken.

  4. Seven of Mine, formerly piegasm says

    Unsurprisingly, “religion” and “christianity” are synonymous in Scalialand.

  5. says

    Do they really appoint people this stupid to the SCOTUS? It’s not about “offense”, and it’s not about religion happening in public view. It’s about instruments of *government* doing religion as part of Official Government Stuff.

  6. Crimson Clupeidae says

    I’m glad it’s the dissent. That means the decision went the other way, at least.

  7. mesh says

    Not to mention his facile comparison completely papers over the fact that the very reason we have provisions specifically for expression of religion and not expression of music is because the former has always been the subject of conflict, oppression, and unending quests for dominance thus requiring special protections. The irony of appealing to protections against the establishment of religion to promote the establishment of religion is apparently lost on him.

  8. screechymonkey says

    brucegee1962 @1,

    Technically speaking, the Supreme Court did not decide this case. It declined to hear the case. With rare exceptions, the Court only hears those cases it chooses to hear, and it only takes a very small fraction of the cases it is asked to take.

    You ask the Supreme Court to take a case by filing a “petition for a writ of certiorari.” If four or more justices (yes, I mean four — it’s not a majority requirement) want to take the case, they can issue the writ, and then the matter is set for briefing and oral argument. The vast majority of the time, the Court denies the petition. That PDF Ophelia linked to shows a long list of cases in which “cert” was denied.

    A denial of cert doesn’t mean that the Court thinks the decision below was correct. The Court sees its role as being not to fix every bad decision lower courts make, but to decide important issues and provide guidance for the lower courts. The justices aren’t really interested in wading into very fact-specific cases. And they often decline to hear brand new issues, at least until several different lower courts have considered an issue and reached conflicting results — then the Court may have to resolve the conflict.

    (The Court does have some other options, too — it can summarily reverse, or “grant, vacate, and remand for further consideration.” It does those typically in situations where it has recently decided a very similar case. Scalia’s dissent says that the Court should have done that here, telling the Seventh Circuit Court of Appeals to reconsider its ruling in light of the recent Town of Greece case the Supremes decided on prayer at city council meetings.)

    Sorry for the long background. Here’s what happened in this case:

    Two public schools in a Milwaukee school district asked to hold their graduation ceremonies in a church. Scalia’s dissent claims that there is no factual dispute that the sole reason was that the church had big enough facilities; I haven’t read the lower court decision so I can’t say if that’s accurate or not.

    The case went from a federal district court, to a panel of three judges on the Court of Appeal for the Seventh Circuit, and then to the entire Seventh Circuit, which held it would be unconstitutional. The school district asked the Supreme Court to hear the case.

    The Court denied the writ, meaning they aren’t taking the case. There’s no “majority opinion” or opinion of the Court issued when a writ is denied, because they aren’t deciding the case, and they almost never explain why not.

    Justice Scalia and Justice Thomas dissented from that decision, and Scalia wrote an opinion dissenting from the denial. This is somewhat unusual — again, look at that long list of other cases in which cert was denied but no dissenting opinion was written — but not terribly rare. (I think it happens a couple of times a year.)

    Of course, that opinion means that we know where Scalia and Thomas stand on this issue — like there was any doubt — but you really can’t read anything into the rest of the justices’ decision not to vote for cert. Alioto, Roberts, and Kennedy might agree with the substance of Scalia’s dissent, but just think that it’s too soon to take another church-state case, or that the facts in this case are too muddy, or … there’s a host of reasons.

    And the denial of cert doesn’t hold any precedential value. Of course, it means that the Seventh Circuit’s decision is final, and that will remain binding precedent in the Seventh Circuit, and persuasive authority elsewhere, but that’s no different than if nobody asked for cert in the first place.

  9. leftwingfox says

    It parallels my own toward the playing in public of rock music or Stravinsky.

    If government had a history of violence towards people over musical tastes, he might have a point.

    Some “Originalist”.

  10. screechymonkey says

    The Seventh Circuit’s decision is here and has much more of the facts.

    To correct my previous post: it turns out that these schools held ceremonies at the church from 2000 and 2002 through 2009. Supposedly they moved there from the previous locations in their respective gyms because of space and comfort reasons. There were other alternative (secular) venues suggested, and each year they would have the seniors vote on it, who voted so overwhelmingly for the church each year that around 2007 they just stopped holding the vote. Finally, in 2010, the ceremonies were moved to new or renovated facilities on the school’s campuses. However, the school district has refused to promise not to use the church again.

    The suit was brought by recent and upcoming graduates. The district court denied the plaintiffs’ motion for summary judgment and granted summary judgment for the district, the three-judge panel upheld that decision, and the full Seventh Circuit en banc panel reversed, holding that the district court should have granted summary judgment in favor of the plaintiffs.

  11. Tim Milburn says

    Isn’t there just a simple slippage here between “public” in the sense of just available for anybody to perceive, and “public” in the sense of paid for by the state. In “Smith stripped in public” and “Public services” the word “public” has a different meaning. There’s no problem with religion being “public” in the sense of just out there in the world to take notice of, its the state endorsement which is the problem. Obvious, no? Eamon Knight says this as well.

  12. screechymonkey says

    Tim Milburn @11,

    I don’t think so. I mean, sure, with his little rock music analogy, Scalia is equivocating a bit in his use of the word “public,” but that’s not really central to his argument. It’s just a sneaky rhetorical trick, not the point of disagreement.

    Scalia doesn’t agree that endorsement is the test. He claims that the recent Town of Greece test implicitly rejected that notion, and that there has to be actual coercion in the form of legal penalties, not mere “peer pressure” or being made to feel like an outsider. I don’t think that’s a fair characterization of Town of Greece, but it just goes to show what a mess the justices made of that case in their desperate efforts to avoid overruling Marsh v. Chambers.

    (In a nutshell: Marsh rejected a challenge to the practice of having a chaplain provide prayers to open sessions of a legislature, basically on the grounds that “well, legislative prayer has been around forever, and the Founders engaged in it, so it must be ok.” The plaintiffs in Town of Greece weren’t arguing to overrule Marsh, they instead tried to argue that Marsh still leaves some limits on legislative prayers, like they have to be nondenominational, etc. The majority said, “nah, it’s pretty much all good.” So now Scalia is saying that this principle isn’t limited to legislative prayer, it at least applies to any alleged “long standing historical practice,” like using churches for public events.)

    Of course, Justice Thomas doesn’t even think the Establishment Clause applies to the state. As far as he’s concerned, the Milwaukee school district could have its own official church and it would all be good. (Well, you know, as long as it was a Christian church, nudge nudge wink wink.)

  13. Claire Ramsey says

    WHAT?? Whether Scalia was making a genuine Supreme Court ruling or not, what he said about religion “. . .offended by public displays of religion. Religion, they believe, is a personal matter . . ” is just stoopid. The constitution doesn’t care about whether it’s a personal matter it cares about separation of church and state. He is demented. And nasty.

  14. Latverian Diplomat says

    Scalia does seem like he’d fit right in, rioting at the premiere of “Rite of Spring”.

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