Supreme Court Justice Antonin Scalia: First Amendment Offers No Protections For Non-Believers

Supreme Court Justice Antonin Scalia’s position on matters of religious freedom has come up before, but today, speaking at a Catholic High School, he was explicit in stating that he believes equal protections for non-religious American citizens are not guaranteed in the U.S. Constitution.

According to Yahoo!, Scalia was speaking at Archbishop Rummel High School in Louisiana, when the subject came up.

The Supreme Court Justice told his audience that the constitution only prevented the government from showing a preference for one sect over another, not from actions that gave preferential rights to religious Americans over those who do not follow any religion.

“To tell you the truth there is no place for that in our constitutional tradition. Where did that come from? To be sure, you can’t favor one denomination over another but can’t favor religion over non-religion?”

This isn’t a new position for Justice Scalia, by any means. In October of 2014, he said essentially the same thing at a speech for students at Colorado Christian University.

In that speech, he essentially suggested that secularists (by definition, those who believe religion has no role in government) were trying to feed the public a lie by claiming that the First Amendment’s religious freedom clause offered the same protections for the rights of the nonreligious as for those of any religion.

According to Americans United, he also gave a similar statement in 2009, to a Jewish newspaper.

“It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.”

Justice Antonin Scalia: nonbelievers don't get equal protection
[Photo by Alex Wong/Getty Images]

This statement, in fact, appears to clarify Justice Scalia’s position further on which religions are, in fact, to be treated with equal protections: those in Jewish and Christian traditions.

Though Scalia’s has expressed the same sentiment consistently over the years, it is not consistent with all Supreme Court rulings. In 1993, for example, the New York Times reports that the Supreme Court affirmed the rights of minority religions by agreeing that a ban on animal sacrifice, which burdened practitioners of Santeria, was discriminatory.

Justice Antonin Scalia, who joined the Supreme Court in 1986, was a part of that decision, which was unanimous.

Nearly two decades before Scalia became a Supreme Court Justice, Justice Hugo Black also made an explicit statement regarding the protections afforded to nonreligious Americans by the First Amendment. Justice Black was issuing an opinion in the landmark case of Everson v. Board of Education — a case that affirmed that the Establishment Clause applied to states as well as Federal government.

In that decision, Justice Black talked about the role of religion and government.

“Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

The Supreme Court, of course, does reverse standings and change opinions over time, — a look at PBS’s telling of the 1857 Dred Scott decision, in which the Court opined that no person of (known, presumably) African ancestry could ever become a citizen of the United States demonstrates that. If Scalia is the current dissenting voice, that’s no guarantee that the majority won’t shift.

Justice Antonin Scalia on religious freedom
[Photo by Chip Somodevilla/Getty Images]

However, current opinions from the highest court in the nation seem to reflect Justice Black’s opinion more than Justice Antonin Scalia’s — and Scalia says he doesn’t mind thinking that future Americans may look on him as backward and on the wrong side of justice:

“You know, for all I know, 50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: ‘He was on the losing side of everything, an old fogey, the old view.’ And I don’t care.”

If anything else is clear about Justice Antonin Scalia’s opinion on religious liberty in the United States, it’s that he is quite firm in his stance, and doesn’t care who disagrees.

[Photo by Chip Somodevilla/Getty Images]