By Eric Rauch
Christians have long maintained that the First Amendment of the Constitution-Congress shall make no law respecting an establishment of religion-is a reference to Christian denominations, and not a blanket statement about a freedom from religion. The framers saw the tendency toward a church and state intermarriage, especially with the Anglican Church in England, and wanted no part of that with the new colonies. According to the First Amendment, Congress was to make no law that established one Christian denomination over another, as it had in England. Liberals have long argued against this understanding because they believe America was founded to be a neutral society with respect to religion and certainly not a Christian nation. But a recent commentary written by Michael McGough gives away the farm for the liberal understanding of the so-called “establishment clause.”
McGough’s main intent in his article is to be critical of Supreme Court Justice Antonin Scalia for ecumenical comments that he made in his dissenting opinion in McCreary County v. ACLU. Because “Scalia is generally regarded as an ‘originalist’-a believer that the Constitution should be interpreted from an 18th century point of view,”1 he is apparently never allowed to use the prevailing logic of the majority opinion to exemplify his own point. McGough labels Scalia’s statements that “97.7% of all believers are monotheistic” and “believe the Ten Commandments were given to Moses by God, and are divine prescription for a virtuous life” as “convenient.”2 Scalia understands, because of his “originalism,” that a case cannot be argued by an appeal to the majority view. McGough understands this too, because he takes Scalia to task for doing it. He doesn’t, however, take Justice Souter to task for arguing in the majority opinion that “we are centuries away from…the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.”3 If Scalia cannot appeal to present-day truths, than neither should Souter.
In order to show just how “convenient” Justice Scalia’s argument is, McGough must incorporate some “convenient” arguing himself. McGough favorably quotes Justice John Paul Stevens to prove his point.
But Stevens turned “originalism” back onto Scalia. “The original understanding of the type of ‘religion’ that qualified for constitutional protection under the Establishment Clause,” he wrote, “likely did not include those followers of Judaism and Islam who are among the preferred ‘monotheistic’ religions Justice Scalia has embraced in his McCreary County opinion. The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall.”4
McGough and Stevens make the fatal flaw here. By demolishing the ecumenical hypothesis of Scalia and understanding the Constitution as an “originalist,” they come to the conclusion that America was indeed established as a Christian nation. They believe that Chief Justice Marshall would be shocked at the notion of including Jews and Muslims under the context of the First Amendment. Why? Because the “establishment clause” was written for the sole purpose of preventing Congress from elevating one Christian denomination over another. By attempting to show Scalia’s lack of logical discernment, McGough and Stevens unwittingly prove that America was, in fact, founded as one nation under the God of the Bible. McGough digs his hole deeper by continuing:
Scalia attempted a riposte in his Van Orden dissent, saying that Stevens’ argument created “a cloud of obfuscating smoke.” But even if some of the framers of the 1st Amendment would have grudgingly included Jewish Americans among those protected by the amendment, it’s highly unlikely that they would have included Muslims. (In his plurality opinion in the Texas case, Chief Justice William H. Rehnquist quotes a delegate to North Carolina’s ratification convention who would have extended religious freedom to “Pagans and Mahometans,” but that is arguably the exception that proves Stevens’ rule.)5
Since McGough believes this to be the exception, then he believes it is undeniable that America is a Christian nation. Since America is a Christian nation, the posting of the Ten Commandments should be allowed everywhere, even government property. McGough has done us a great service by pointing out the ‘faulty logic’ of Justice Scalia-he makes Scalia’s point that much stronger.