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