Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency."tristero," the blogger, properly points out that offense is not the issue.
Obviously, the issue is not that the display of religion is offensive but that the establishment of any religion by a government is extremely dangerous (see the Middle East) and that the government sanctioned display of a specific religion strongly implies establishment.Unfortunately tristero continues with some childish personal slams against Scalia, which may well be justified but are beside the point. Does he, or anyone, seriously want to claim that taste in music is relevant to a judge's competence as a judge? After all, Scalia has a law degree from Harvard Law School and was an editor of the school review, just like another great Constitutional scholar we all know, so how can anyone doubt his qualifications or his authority?
Aside from Scalia's actual arguments, that is. As tristero says, the issue is not one of personal offense or taste but the First Amendment, which forbids the government to establish any religion. The Establishment Clause is not easy to interpret, like so much of the Constitution and the Bill of Rights, so it's legitimate to debate whether a given practice constitutes an establishment of religion. In the case of prayers and invocations before government functions, I think it's obvious that they violate the Establishment Clause, as did James Madison, but they've been doing so ever since the first US Congress commenced, and that camel long ago made itself at home in the tent. I'm all in favor of kicking it out, but I know it won't be easy.
What concerns me is that Scalia isn't the only one who makes this mistake. (I'll try to write more about this later; the rest of his dissent seems to be similarly wrongheaded.) I recall a suit, in the 1990s I think, by a group of people to prevent an official prayer at Indiana University commencements. The petitioners claimed that the prayer was offensive and therefore shouldn't be part of the ceremony. But offense is not a legal reason not to include the prayer. (I wonder how much of a role offense played in Elmbrook School District v. John Doe, the case Scalia was writing about. Topic for further research, and soon.) It may well be an ethical reason, or one of courtesy, but as a legal reason, not at all. It's alarming that liberals are as confused about the First Amendment as conservatives are.
