Over at Balkinization, Jack Balkin discusses Scalia’s uncompromising dissent in McCreary County v. ACLU, the courtroom 10 commandments case:
Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam.
Quite apart from its viciously divisive tone, Scalia’s argument displays remarkable ignorance. For example, he asserts that “With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities just as it permits the disregard of devout atheists”. Yet the phrase “believers in unconcerned deities” clearly describes deists, a category that included many of the framers of the Constitution.
Balkin’s analysis is much more detailed than my brief note. Among other things, he dissects the curious pretzel logic that Scalia employs in including Jews and Moslems. The (scathing) bottom line: “Justice Scalia’s tradition of establishment of monotheism is, like so many other traditions, an invented tradition which he has made up to produce an outcome that he politically prefers.”
Highly recommended.