The death of Justice Antonin Scalia, coming as it does at a time when some of the most important Supreme Court cases are being decided by votes of five to four, is bound to rock the presidential election. But nowhere will his passing be felt more keenly than in the religiously fundamentalist communities, including Orthodox Jews, who viewed the justice as one of the great defenders of their right to stand apart.
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Scalia was the speaker in 2008 at the annual banquet in New York of the Agudath Israel, which filled a vast ballroom at the Hilton Hotel. At one end is a dais of four tiers, along which sat more than 100 of the great rabbis dressed in black and wearing long beards. And there among them sat Justice Scalia, flanked by the Novominsker Rebbe, Yaakov Perlow, and the city’s police commissioner, Raymond Kelly.
It was a glorious sight, and Scalia delivered the sort of remarks for which he is so widely appreciated by religious Americans. His key point was the Founders of America had not intended the First Amendment to exclude religion from the public square. He also told a wonderful story, which I have related many times (including in recent hours) about a teacher, Father Murray, at Xavier High School in Manhattan, where Scalia studied as a lad.
Scalia, imitating Murray’s Boston accent, related the teacher’s explanation that when one studied Shakespeare, it wasn’t the Bard who was on trial — it was the students. And that is how Scalia himself viewed the relationship of judges to the authors of the Constitution. He felt a burden to study their words to divine what they had originally intended and then to act accordingly, which led to one of his most famous dissents.
The case was called Lemon v. Kurtzman, in which an atheist, Alton Lemon, himself a constitutional lawyer, sought to bar the Quaker State, Pennsylvania, from using public funds to reimburse church-affiliated schools pay for help teaching secular subjects. The court sided with Lemon and over-ruled Pennsylvania. It said the wall of separation between church and state wasn’t absolute, but it set up what became known as the “Lemon test.”
It was a complex formulation to test when Congress had violated the prohibition on passing any law respecting an establishment of religion. Scalia hated the Lemon test’s hostility to “an excessive government entanglement with religion.” In a subsequent case, Scalia likened it to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried” and “stalks” our jurisprudence, “frightening the little children and school attorneys.”
In 2013, Scalia came to Yeshiva University here in New York for a symposium on “Synagogue and State.” He appeared on stage with the Modern Orthodox star Rabbi Meir Soloveichik and the constitutional lawyer Nathan Lewin, another giant in the struggle for religious freedom. Scalia had recently been mocked in the press for confessing he believed in the Devil.
When his interlocutor sneered a question about what the Devil was up to now, Scalia had replied: “Getting people not to believe in him or in God.” At Yeshiva, the justice warned against a misreading of the first clause of the Bill of Rights, which says “Congress shall make no law respecting an establishment of religion.” Why was it worded that way, Scalia asked.
After all, at the time the First Amendment was ratified, a number of the states had religious establishments, meaning laws establishing an official church in the state. What the Founders feared, he suggested, was not only the establishment of a national church but the disestablishment of the state churches. He suggested we are now in an era of Establishment clause “incoherence.”
How his view will be missed as all this is sorted out. When a Catholic charity known as Little Sisters of the Poor filed its appeal to at the Supreme Court, where the nuns are seeking protection from the Obamacare birth control mandate, the first friend-of-the-court brief filed was from a group of rabbis who understood that if the Little Sisters can be pushed around, the rest of us can, too.
Their case now looks in doubt. Because they lost in the 10th Circuit, they need a majority of the nine justices to win their liberty. Hobby Lobby, a company owned by religious Christians, won its case, involving similar questions, by the narrowest margin, five to four, with Scalia in the van. Predicting high court decisions is a dangerous game, but it’s at least possible that religious Americans may begin feeling the loss of The Great Scalia even before a new justice is confirmed.
Seth Lipsky is editor of The New York Sun. He was a foreign editor of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000.