Justice Scalia and the Religion Clauses: A Comment on Professor Epps
29 Pages Posted: 13 Aug 2006
This Comment was written in response to an article by Garrett Epps (Oregon) for a conference at Washington University-St. Louis on the Rehnquist Court and the First Amendment. Epps's lead article criticizes the Court's moderate/conservative majority as a separationist: the Court majority took too far divisive opinions Justice Scalia holds about religion and public life. The Comment provides a religionist response: Epps makes novel insights about Justice Scalia, but the Rehnquist Court did not threaten the separationist commitments in religion case law nearly as much as Epps suggests, and in any case a healthy republican community needs religion in its public square.
The Comment may be of general interest for three reasons. First, using original sources, it restates concisely the religionist case for accommodating religion into civil and political life. Second, it uses the the religion cases to consider whether Justice Scalia prefers originalism for its own sake or as a means to promote other policy values, particularly judicial restraint and democratic majoritarianism. Finally, the religion cases help correct leading retrospective portraits of the Rehnquist Court. These cases reveal important commitments, both interpretive and substantive, that influenced Justices Kennedy and O'Connor to ally with or abandon the Rehnquist Court's most conservative Justices.
Keywords: religion, separation, accommodation, establishment, free exercise, Rehnquist Court
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