In Pursuit Of Justice

Note: This article was originally published in May 1996.

On a day when he was perhaps the most talked about politically conservative figure in America, U.S. Supreme Court Justice Antonin Scalia thoroughly charmed and challenged an audience at the Jewish Theological Seminary with his bold legal views calling for more religion in American society.

Scalia, a devout Catholic and father of nine who was raised and educated in Queens, made front-page news Tuesday when he was the high court’s primary dissenter in the landmark decision striking down a Colorado law that nullified civil rights protections for homosexuals.

But at Conservative Judaism’s headquarters on the Upper West Side, Scalia talked about the religion clause in the Constitution, specifically the Bill of Right’s “establishment clause” which prohibits the federal government from adopting a state religion.

Scalia, who was appointed by Ronald Reagan in 1986 and remains one of the Supreme Court’s consistently conservative members, argued that “his court” has gone too far in prohibiting a wide range of religious expression in public activity.

He cited the 1992 case where the Supreme Court ruled that a rabbi who read the Shehecheyanu during a secular graduation ceremony.

“I dissented,” Scalia explained, “because the court ignored this country’s tradition of nondenominational prayers at graduations.

Scalia centered his hour-long talk on the importance of tradition. “I could be Fiddler on the Roof here,” he joked.

Calling himself a textualist, Scalia argued that the Constitution is a document that can’t just be interpreted and changed to fit the mores and practices of the times — which led some to comment that his legal philosophy has more in common with the theological views of an audience farther uptown at the Orthodox Yeshiva University.

“The tradition of the people in the United States takes precedence over formulaic abstractions,” he asserted in explaining that his colleagues should not be inventing new meaning for the establishment clause that are not explicit in the text.

He took issue with current liberal legal philosophy that finds fault with what he argues are harmless practices such as saying nondenominational prayers to open legislative sessions.

“Our traditions should tell us where our rules ought to be.”

Scalia emphasized that putting tradition first does not always mean he likes the outcome.

For example, he noted that he was the fifth vote on the Supreme Court to strike down a law banning the burning of the American flag. While he said he abhors flag-burning, it is a “contemptuous” form of expression that is protected under the First Amendment, and he count not just change the Constitution to justify the majority of American’s support of a flag-burning law.

In a spirited question-and-answer period, Scalia fielded questions ranging from his view on equal protection to the culture wars. The 60-year-old jurist seemed to delight in being taken to task by a member in the audience of about 200 who criticized his vote on flag burning.

“What can I tell you, I’m a crazy liberal,” he responded. “I really like defending myself against being too liberal.”

Moderator Azizah Y. al-Hibri, an associate professor of Law at the University of Richmond and a leading Muslim women rights activist, noted that Scalia stirred controversy recently for telling a group in Alabama that he believes in miracles.

“Who can deny a small miracle when a Muslim professor introduces a Catholic justice in a Jewish seminary? Only in America,” she said.

Scalia spoke as part of the JTS Finkelstein Institute’s ongoing series on politics and religion in America. Previous speakers have included New York’s John Cardinal O’Connor.

Strossen said that while having Scalia was engaging, she disagreed with his select application of tradition in his legal arguments.

“It’s subjective,” she said.

In what was perhaps a telling moment, Scalia sipping a cola, was asked by one young man how the justice would invoke the concept of tradition in a legal case where Jews would challenge “blue laws” that prohibit them from working on Sunday.

“Why should Jews have to be closed on Sunday when it’s not their Sabbath?” the young man asked.

Scalia said that American tradition is that there is one day of rest, and it has been designated as Sunday.