Antonin Scalia, Separation of church and state.

Published on Thursday, December 2, 2004 by CommonDreams.org
Scalia To Synagogue - Jews Are Safer With Christians In Charge
by Thom Hartmann

Antonin Scalia, the man most likely to be our next Chief Justice of the Supreme Court, turned history on its head recently when he attended an Orthodox synagogue in New York and claimed that the Founders intended for their Christianity to play a part in government. Scalia then went so far as to suggest that the reason Hitler was able to initiate the Holocaust was because of German separation of church and state.

The Associated Press reported on November 23, 2004, "In the synagogue that is home to America's oldest Jewish congregation, he [Scalia] noted that in Europe, religion-neutral leaders almost never publicly use the word 'God.'"

"Did it turn out that," Scalia asked rhetorically, "by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America?" He then answered himself, saying, "I don't think so."

Scalia has an extraordinary way of not letting facts confound his arguments, but this time he's gone completely over the top by suggesting that a separation of church and state facilitated the Holocaust. If his comments had gotten wider coverage (they were only noted in one small AP article, and one in the Jerusalem Post), they may have brought America's largest religious communities - both Christian and Jewish - into the streets.

Born in 1936, Scalia is old enough to remember the photographs that came out of Germany when he was a boy - they were all over the newspapers and news magazines at war's end. It's difficult to believe he wasn't exposed to them as a teenager, particularly having been raised Catholic. And if he missed all that, one would think that his son the priest would have told him about them.

The photos that can be seen, for instance, at www.nobeliefs.com/nazis.htm of the Catholic Bishops giving the collective Nazi salute. The annual April 20th celebration, declared by Pope Pius XII, of Hitler's birthday. The belt buckles of the German army, which declared "Gott Mit Uns" ("God is with us"). The pictures of the 1933 investiture of Bishop Ludwig Müller, the official Bishop of the 1000-Years-Of-Peace Nazi Reich. That last photo should be the most problematic for Scalia, because Hitler had done exactly what Scalia is recommending - he merged church and state.

Article 1 of the "Decree concerning the Constitution of the German Protestant Church, of 14 July 1933," signed by Adolf Hitler himself, merged the German Protestant Church into the Reich, and gave the Reich the legal authority to ordain priests.

Article Three provides absolute assurance to the new state church that the Reich will fund it, even if that requires going to Hitler's cabinet. It opens: "Should the competent agencies of a State Church refuse to include assessments of the German Protestant Church in their budget, the appropriate State Government will cause the expenditures to be included in the budget upon request of the Reich Cabinet."

That new state-sponsored German church's constitution opens: "At a time in which our German people are experiencing a great historical new era through the grace of God," the new German state church "federates into a solemn league all denominations that stem from the Reformation and stand equally legitimately side by side, and thereby bears witness to: 'One Body and One Spirit, One Lord, One Faith, One Baptism, One God and Father of All of Us, who is Above All, and Through All, and In All.'"

Section Four, Article Five of he new constitution further established a head for the new German state-church with the title of Reich Bishop. Hitler quickly filled the job with a Lutheran pastor, Ludwig Müller, who held the position until he committed suicide at the end of the war.

Which brings up one of the main reasons - almost always overlooked by modern-day commentators, both left and right - that the Founders and Framers were so careful to separate church and state: They didn't want religion to be corrupted by government.

Many of the Founders were people of faith, and even the Deists like Franklin, Washington, and Jefferson were deeply touched by what Franklin called "The Mystery." And they'd seen how badly religious bodies became corrupted when churches acquired power through affiliation with or participation in government.

The Puritans, for example, passed a law in Plymouth Colony in 1658 that said, "No Quaker Rantor or any other such corrupt person shall be a freeman in this Corporation [the state of Massachusetts]." Puritans banned Quakers from Massachusetts under pain of death, and, as Norman Cousins notes in his book about the faith of the Founders, In God We Trust, "And when Quakers persisted in returning [to Massachusetts] in defiance of law, and in practicing their religious faith, the Puritans made good the threat of death; Quaker women were burned at the stake."

Quakers were also officially banned from Virginia prior to the introduction of the First Amendment to our Constitution. Cousins notes: "Quakers who fled from England were warned against landing on Virginia shores. In fact, the captains of sailing ships were put on notice that they would be severely fined. Any Quaker who was discovered inside the state was fined without bail."

Throughout most of the 1700s in Virginia, a citizen could be imprisoned for life for saying that there was no god, or that the Bible wasn't inerrant. "Little wonder," notes Cousins, "that Virginians like Washington, Jefferson, and Madison believed the situation to be intolerable."

Even the oppressed Quakers got into the act in the 1700s. They finally found a haven in Pennsylvania, where they infiltrated government and promptly passed a law that levied harsh fines on any person who didn't show up for church on Sunday or couldn't "prove" that s/he was home reading scripture on that holy day.

Certainly the Founders wanted to protect government from being hijacked by the religious, as I noted in a previous article that quotes Jefferson on this topic. But several of them were even more concerned that the churches themselves would be corrupted by the lure of government's easy access to money and power.

Religious leaders in the Founders' day, in defense of church/state cooperation, pointed out that for centuries kings and queens in England had said that if the state didn't support the church, the church would eventually wither and die.

James Madison flatly rejected this argument, noting in a July 10, 1822 letter to Edward Livingston: "We are teaching the world the great truth, that Governments do better without kings and nobles than with them. The merit will be doubled by the other lesson: the Religion flourishes in greater purity without, than with the aid of Government."

He added in that same letter, "I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together."

Madison even objected to government giving money to churches to care for the poor. It would be the beginning of a dangerous mixture, he believed - dangerous both to government and churches alike. Thus, on February 21, 1811, President James Madison vetoed a bill passed by Con gress that authorized government payments to a church in Washington, DC to help the poor.

In Madison's mind, caring for the poor was a public and civic duty - a function of government - and must not be allowed to become a hole through which churches could reach and seize political power or the taxpayer's purse. Funding a church to provide for the poor would establish a "legal agency" - a legal precedent - that would break down the wall of separation the founders had put between church and state to protect Americans from religious zealots gaining political power.

Thus, Madison said in his veto message to Congress, he was striking down the proposed law, "Because the bill vests and said incorporated church an also authority to provide for the support of the poor, and the education of poor children of the same;..." which, Madison said, "would be a precedent for giving to religious societies, as such, a legal agency in carrying into effect a public and civil duty."

Madison also opposed - although he didn't stop - the appointment of chaplains for Congress. "Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?" he asked in 1820. His answer: "In the strictness the answer on both points must be in the negative. ...The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles."

Madison went on to suggest that if members of Congress wanted a chaplain, they should pay for it themselves. "If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Cong wd suffice for the purpose! How just wd it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience! Why should the expense of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Gov."

But always, in Madison's mind, the biggest problem was that religion itself showed a long history of becoming corrupt when it had access to the levers of governmental power and money.

In 1832, he wrote a letter to the Reverend Jasper Adams, pointing this out. "I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others."

As he wrote to Edward Everett on March 18, 1823, "The settled opinion here is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both..."

Yet now, in 2004, the religious appear to be on the verge of both corrupting government and being corrupted themselves by the power and influence government can wield.

For example, as Reverend Moon has moved more and more into the political realm - from funding activities of both George H.W. Bush and his son George W. Bush, to funding the money-losing but politically activist Washington Times newspaper, to financially bailing out Jerry Falwell, to setting up numerous charities that now ask for federal funding - we see an increasing and ominous participation of legislators and Moonies. Moon, for example, was crowned by several members of Congress in the Senate Dirksen Office building on March 23, 2004. As the Washington Post noted in a July 21 story by Charles Babington, Moon himself proclaimed to our elected representatives attending the ceremony, "Emperors, kings and presidents . . . have declared to all Heaven and Earth that Reverend Sun Myung Moon is none other than humanity's Savior, Messiah, Returning Lord and True Parent."

Others, like Falwell and Robertson, who want to use the money and power of government to promote their religious agendas, are making rapid inroads with George W. Bush's so-called "faith-based initiatives," which shift money from government programs for the poor and needy to churches and religious groups.

All of this - the merging of church and state - is now being aggressively promoted by no less than Supreme Court Associate Justice Antonin Scalia, in no less shocking a venue than the nation's oldest Orthodox synagogue.

In some distant place, Adolf Hitler and Bishop Müller must be smiling at Scalia's encouragement of the growing conflation of church and state in America. It's exactly what they worked so hard to achieve, and what helped make their horrors possible.

And Thomas Jefferson and James Madison must have tears in their eyes.