Anton Scalia and the Catholic Conspiracy

Is Justice Scalia serving the wrong master?

My history undergraduates are surprised when I tell them that, in 1960, John F. Kennedy bore a nearly insurmountable burden: he was a Roman Catholic. There were many Americans who doubted that a Catholic could lead the nation. Would Kennedy consult the pope in matters of policy? If war loomed, would the American commander-in-chief delay action until he consulted the pontiff in Rome? Kennedy's victory over Richard Nixon was razor thin and his faith was one reason why. Kennedy's inaugural address is best known for its killer sound bite–"ask not what your country can do for you, but what you can do for your country"–but its most important lines were those with which he closed his speech: "With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own."

Kennedy's grand rhetorical flourish assuaged fears by subtly shifting the focus from Rome to home. Notice that conscience, history, and nation come before God in the speech, and that it ends with an emphasis on human deeds unmediated by popes or confessors. Kennedy's presidency put to rest a century's-old myth that Catholics were disloyal. It's hard to imagine anyone today raising fears of Vatican control of America, right? Not so fast. In Bruce Allen Murphy's new biography Scalia: A Court of One (reviewed in the June issue of The Atlantic), Murphy argues that what people feared about JFK in 1960 is true of Justice Anton Scalia in 2014. Scalia is more than the most rightwing of all Supreme Court justices–he's also one who takes more cues from the Vatican than from the Constitution in issues such as abortion rights, contraceptive policies, gay rights, gender equality, school prayer, and separation of church and state. Murphy notes that Scalia's views are nearly 100% in accord with those of Vatican, the glaring exception being that Scalia supports the death penalty.

Were Scalia really a court of "one," there would be little cause for alarm. Alas, as we can readily observe, "faith" has become a conservative touchstone and a (nonexistent) "war on religion" a rallying cry. Scalia serves the intellectual-in-residence for at least three other justices. To pick just one potentially chilling example of Scalia's faith-driven positions that might hold sway, he has already signaled he will vote to grant Hobby Lobby petition for exemption from Affordable Care Act provisions guaranteeing contraceptive coverage in employee insurance plans. Hobby Lobby's conservative Christian owners claim paying for contraceptives violates their religious beliefs. If the private beliefs of Hobby Lobby's owners prevail over the public health rights of its employees, the floodgates will open for all manner of faith-based (or faith-faked) objections.

As I have argued on numerous occasions, the very survival of American religious freedom demands separation of church/synagogue/mosque and state. American democracy is endangered when the religious beliefs of any one faith is privileged over other beliefs. This ought to be a clear violation of the First Amendment's opening line: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" There is not a word of the right of individuals to model national policy according to religious doctrine. They are free to "exercise" individual beliefs "freely," but the prohibition of "an establishment of religion" implies that public government and private belief must remain separate. The freedom to believe is not the same as the freedom to act.

It's clear, though, that Scalia thinks the doctrines of Roman Catholicism supersede the U.S. Constitution. Maybe that sounds right and you agree that faith is paramount. How far do you want to take that? Should Muslims who carry out "honor killings" be exempt from murder laws? Should polygamy laws be repealed? Can satanic cults engage in human sacrifice? Some faiths sanction child marriage, are you okay with that? Naked Wiccans in the public square anyone? Can Quakers withhold taxes that go to the military? Is it okay to practice anti-Semitism in the name of religion? Race discrimination?

Anton Scalia is a Catholic. I respect his right to practice his religion. I like Catholics and Pope Francis seems like a really good guy to me. But I'm not a Catholic and I don't want the Vatican's fingerprints on my country's laws. Scalia might be a brilliant man, but John Kennedy had it right. If Scalia wants to be a priest, take off the judicial robes and don a surplice.