Supreme Court Justice Antonin Scalia made headlines recently when he said that the US Constitution can favor religion over non-religion. As a constitutional scholar who has not hesitated to disagree with Justice Scalia — especially over his interpretation of the Second Amendment and his invention of gun rights, which to my mind betray his theory of original understanding by delinking the “right to bear” arms from membership in a militia — there is nothing headline worthy in his statement.
It is unexceptional, and it is correct.
Indeed, it is a sad commentary on the public’s understanding of the Constitution that most would not realize that Justice Scalia and President Barack Obama are in substantial agreement. From his earliest public campaigns, President Obama reminded us how the history of civil rights in America could not be grasped without an appreciation for the positive role religion played.
One suspects that the headline writers thought they were bolstering individual rights by impliedly criticizing Justice Scalia’s statement. They were doing the opposite. In fact, they were not supporting the Constitution, but rather Donald Trump, whose claimed authority for singling out the Muslim population is distinctly not what the president and the justice mean when they discuss the role of religion in public life. To the contrary, Trump’s plan is a subversion of constitutional principle.
Notice, importantly, that the president and the justice allow for laws to be made by the people that favor religion generally, as in Thanksgiving proclamations or by allowing religiously-affiliated schools, hospitals, and homeless shelters to receive public subsidies. But unlike Trump, they would invalidate laws that discriminate against particular religions.
As with much of the Constitution, its correct understanding depends upon its original purpose: allowing “we the people” to govern ourselves, limited by a structure set down in advance (the Constitution), which itself was popularly ratified. By the measure of the Constitution, it is the radically hateful ideas of Donald Trump and the barbaric actions of Islamic fundamentalists that are way out of bounds.
In our Republic, an individual Muslim believer would be shielded from Trump’s coerced disadvantage, but fundamentalists would be precluded from using the Constitution to impose Sharia law or any other religious tenet on nonbelievers. Unlike the failed Muslim Brotherhood’s constitution in Egypt or the horrific denial of human rights represented by the recent religious executions in Saudi Arabia, the US Constitution articulates not hostility toward religion, but its greatest accommodation consistent with public order.
In short, there is no inconsistency between the articulation of what our founders believed to be self-evidently true — that our inalienable human rights are beyond the reach of any government as they come from a Creator — and the individual guarantee in the First Amendment that each of us has the complete freedom to believe or not believe as we see fit.
The Declaration of Independence affirms that the Republic being birthed in 1776 was a nation unashamed to concede the existence of a higher power; and the acknowledgment of that religious favoritism was so secure, so well-accepted, that this human right could be even more strongly secured by the First Amendment’s double protection of religious freedom: both denying the government the power to coerce religious participation and prohibiting the government from interfering with any religious participation we decide to undertake.
As the US Supreme Court held well before the time of Justice Scalia’s service: “We are a religious people whose institutions presuppose a Supreme Being.” Neither Antonin Scalia nor Barack Obama should be faulted for affirming that proposition.
There is cause for concern, however, if we fail to see the constitutional compatibility of these political antagonists, for it opens the door for those who, in pursuit of their own self-interested agenda, delight in dividing us from one another by instilling the fear of others who have simply chosen to worship differently than ourselves.
Douglas W. Kmiec is the Caruso Family Chair and professor of Constitutional Law at Pepperdine University School of Law. He worked in the legal counsel’s office during the administrations of Ronald Reagan and George H.W. Bush, and as US ambassador to Malta under Barack Obama.