Justice Scalia, the Establishment Clause, and Christian Privilege

33 Pages Posted: 16 Feb 2017 Last revised: 1 Mar 2017

Caroline Mala Corbin

University of Miami School of Law

Date Written: February 16, 2017

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.

Keywords: Scalia, Establishment, race, religion, privilege, white privilege, Christian privilege, critical race theory, Ten Commandments, originalism, originalist, Establishment Clause, Latin cross, religious symbol

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

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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