Culture Warrior: Scalia’s Fight for (Selective) Religious Rights

100 Pages Posted: 1 Aug 2011 Last revised: 24 Aug 2011

Date Written: 2011

Abstract

America, according to Supreme Court Justice Antonin Scalia, is a Christian nation. Our history, traditions, and culture embrace acknowledgment of the existence of a monotheistic higher power. However, these venerated traditions have come under attack from a group of activist judges looking to secularize the American public realm, or so Scalia would have us believe. For Scalia, the rights associated with American citizenship are part of a system of ordered liberty, and thus first require self-discipline on the part of the potential rights-bearer. Religion, when fully acknowledged and respected in the public realm, is crucial to maintaining this self-discipline. Scalia believes that the loss of religion in the public sphere is the loss of a key institution for fostering self-discipline that allows for a system based on ordered liberty to flourish. Thus, Scalia’s Free Exercise Clause and Establishment Clause jurisprudence embody Scalia’s attempts to maintain religion’s role in the public realm, and in so doing, concretize his vision of American identity. However, in that rights are intractably linked to national identity, Scalia’s vision involves defending “proper” forms of religion, while expelling inappropriate forms of religion — and worse, secularism - from the public realm. For Scalia, the appropriateness of religion and public religious expression depends on its ability to foster the conditions of self-discipline necessary to support a conception of America as a nation premised upon ordered liberty. In this essay, I examine Scalia’s Free Exercise and Establishment Clause jurisprudence to better understand Scalia’s view of the proper role of religion in society. More importantly, I connect his view of religion to his take on rights and the construction of American identity. Scalia’s vision regarding proper American identity further shapes which religious groups should be granted accommodations, and which ones should be regulated to force compliance with his vision. When Scalia’s religion-clause jurisprudence is compared with his take on rights for other minority groups, his articulation of a fully-formed conception of the American nation is revealed. This conception enables a robust comprehension of Scalia’s rights jurisprudence, as well as the seeming contradictions in his approach to rights for various minority groups and for religious groups (or individuals) claiming persecution. I engage in textual analysis of Scalia’s religion-clause jurisprudence, finding what themes he uses in rights-based cases, and how these themes vary in cases based on religious claims for accommodation. I argue that Scalia’s conception of ordered liberty, and America as a nation that needs to acknowledge religion in the public realm, explains his religion-clause jurisprudence and is consistent with his rejection of rights claims in other areas of the law, albeit in non-obvious ways.

Keywords: Scalia, religion, Constitutional Law, free exercise, establishment

Suggested Citation

Tagliarina, Daniel, Culture Warrior: Scalia’s Fight for (Selective) Religious Rights (2011). APSA 2011 Annual Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1901172

Daniel Tagliarina (Contact Author)

University of Connecticut ( email )

Storrs, CT 06269-1063
United States

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