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Coming of age as a conservative interested in the law, I and everyone in similar circles wanted to be Justice Antonin Scalia. What an intellect, what courage, and man, what writing! We admired his penchant for cutting to the heart of his opponents’ arguments and then cutting them out. He would always do so with an extra dose of common sense—and with fearlessness in identifying his colleagues’ frequent absence of it.
Lee v. Weisman was the case that hooked me. It concerned a nonsectarian benediction at a public high school graduation, which the Supreme Court ruled violated the Establishment Clause because all students were obligated to “maintain respectful silence” throughout. The five-justice majority held that this amounted to religious coercion. Scalia’s dissent embodied everything we loved about him.
“The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition,” Scalia wrote. Even Thomas Jefferson, the lead architect of the wall separating church and state, prayed in both his inaugural addresses, from which Scalia quoted. How could continuing that tradition suddenly violate the Constitution? It couldn’t. Yet the Court’s violation of common sense was even more flagrant, he inveighed:
The Court’s notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined—or would somehow be perceived as having joined—in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions”… have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence.
Continue reading the entire piece here at Civitas Outlook
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir Fellow.