Re: J. Scalia and judicial integrity
Just as a quick aside, Julian. When you first joined in this discussion you noted an interest in judges allowing personal issues to persuade their decisions. I found it remarkable that J. Scalia, in writing the majority Opinion in
Employment Division v. Smith, does not recognize a need to protect religious actions under the free religious expression clause. In fact, Scalia writes in his Opinion "the government may not compel affirmation of religious belief," citing
Torcaso v. Watkins. However, two years later, in a dissenting Opinion in
Lee v. Weisman, Scalia takes quite a different view of government compulsion to the affirmation of religious belief. Here, hiding in the guise of tradition, Scalia asserts that students who attend their public school graduation should not have constitutional protections to prevent compulsive prayer at the graduation. Scalia feels that this religious tradition is so necessary to a public high school graduation that it should be the responsibility of the student, who does not wish to participate in prayer, to either sit in "respectful silence" or choose not to attend her own graduation. In
Lee v. Weisman, religion holds such a valuable place to Scalia that he feels it is better that a student miss such an important milestone in her life rather than the tradition of prayer be eliminated. Yet, when it comes to granting unemployment benefits, Scalia seems not so willing to bend the law to accommodate the religious use of peyote.
Someone, either here or elsewhere, once said that conservative justices are appointed for their judicial decisions in favor of business; their religious bend is usually just an added bonus. Here, where Scalia's tendencies towards religious infringement in government and business are at odds, Scalia seems to stick with business. I'm not sure if that is a fair assessment, I'm not that familiar with Scalia's decisions. But from what I've read of him thus far, I'm unimpressed. I figured I would throw that out there for you in case you wanted to look into it.
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at: 4/12/07 11:17 am
