Abstract

https://ssrn.com/abstract=2917953
 


 



Justice Scalia, the Establishment Clause, and Christian Privilege


Caroline Mala Corbin


University of Miami School of Law

February 16, 2017

First Amendment Law Review, Vol. 15, 2017
University of Miami Legal Studies Research Paper No. 17-4

Abstract:     
Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion.

This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.

Number of Pages in PDF File: 33

Keywords: Scalia, Establishment, race, religion, privilege, white privilege, Christian privilege, critical race theory, Ten Commandments,


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Date posted: February 16, 2017 ; Last revised: February 23, 2017

Suggested Citation

Corbin, Caroline Mala, Justice Scalia, the Establishment Clause, and Christian Privilege (February 16, 2017). First Amendment Law Review, Vol. 15, 2017; University of Miami Legal Studies Research Paper No. 17-4. Available at SSRN: https://ssrn.com/abstract=2917953

Contact Information

Caroline Mala Corbin (Contact Author)
University of Miami School of Law ( email )
1311 Miller Drive
Coral Gables, FL 33146
United States

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