American public religion in the religion clause jurisprudences of Felix Frankfurter and Antonin Scalia.




Meadors, David C.

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The First Amendment religion clause jurisprudences of two United States Supreme Court justices--Felix Frankfurter and Antonin Scalia--find different forms of American public religion constitutional. Frankfurter's jurisprudence applied the Free Exercise Clause weakly, but the Establishment Clause strictly, as exemplified in the cases Minersville School District v. Gobitis, 310 U.S. 586 (1940) and McCollum v. Board of Education, 333 U.S. 203 (1948). Scalia, on the other hand, has interpreted both clauses with deference to government action in most cases, and this is evident in Employment Division v. Smith, 494 U.S. 872 (1990) and McCreary County v. ACLU, 545 U.S. 844 (2005). The originalist interpretive methodology applied by both judges to the religion clauses relies for authority upon leaders from America's founding era such as Thomas Jefferson and George Washington, especially in Establishment Clause cases. Yet, Frankfurter and Scalia do not cite the same founders as authority, and they do not interpret the Establishment Clause in the same manner since Frankfurter has applied it strictly whereas Scalia has applied it weakly. In addition, Scalia has defended his originalist interpretive methodology of textualism in extrajudicial sources whereas Frankfurter's rationale for the originalism he applies to the religion clauses appears in his official opinions. Moreover, Frankfurter's Free Exercise Clause opinions also defer to government action because of his arguments in favor of judicial restraint, and both judges agree that religious liberty is best protected when first cherished and protected by citizens in the democratic process before resort to judicial review. The American public religion deemed constitutional in Frankfurter's religion clause opinions is also more secular in nature in that it does not include belief in God, but elements similar to religious faith such as the secular need for a day of rest, veneration of the American flag, and an appeal to the need for unifying beliefs in society, or what Frankfurter called "cohesive sentiment." Frankfurter reasoned, however, that more specifically religious education programs in public schools were unconstitutional because they would likely create social conflict. Scalia, to the contrary, has found more specifically theistic public religious expressions such as graduation prayers and displays of the Ten Commandments constitutional. This is not only because Scalia finds these expressions of American public religion consistent with and American tradition allowing preference for monotheistic faiths in public acknowledgments of deity, but also because he argues that relatively generic prayers at graduation ceremonies will enhance religious toleration and civility.



Interpretation of the First Amendment religion clauses.