This isn’t actually news: Justice Antonin Scalia has long said nothing in the US Constitution requires the government to scrub all appearances of religion from the public square. He did put a new twist on it this time, though, essentially saying the government can favor religion over non-religion:

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion,” Justice Scalia said.

There is nuance to that statement. Scalia had mentioned examples of the Pledge of Allegiance (“…one nation, under God…”) and municipal prayers that had been attacked in recent years — and continue to be so.  Scalia says the government is allowed to have those expressions of religious belief.  In essence, if those acts “favor” religion, as critics assert, then Scalia says the government can favor religion:

Justice Scalia said that even President Thomas Jefferson, who’s credited with creating the concept of separation of church and state, wrote in the Virginia Declaration of Religious Freedom that, “God who made the mind of man made it free.”

“We do him [God] honor in our pledge of allegiance, in all our public ceremonies,” Justice Scalia said. “There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution.”

The focus, then, isn’t on the government promoting religion. The focus is permitting religious exercise even in public — something secularists call “favoring” religion.

Critics of religious liberty like Michael “Mikey” Weinstein have made similar accusations against the US military, claiming that allowing public expression “favors” religion or otherwise undermines the military mission.  And as Scalia noted secularists trying to bludgeon religion with the US Constitution, so, too, Weinstein uses the Constitution and military regulations as clubs in his attempts to beat religious liberty out of the US military.

Will Scalia’s defense of the Constitution prevail?  Will Weinstein?  It remains to be seen.

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