The majority ruled to outlaw Ten Commandments displays in McCreary County, Kentucky courthouses on the reasoning that government is prohibited not only from establishing a religion, but from even preferring religion over non-religion. That, of course, is idiocy that Scalia dismantles with a flourish. He extensively catalogues the actions of the Founders in advocating religion, and then asks:
With all of this reality (and much more) staring it in the face, how can the Court possibly assert that " 'the First Amendment mandates governmental neutrality between ... religion and nonreligion,' " and that "[m]anifesting a purpose to favor . . . adherence to religion generally," is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society's constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, criticizing a Court of Appeals opinion that had held "under God" in the Pledge of Allegiance unconstitutional. Nothing stands behind the Court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the Court's own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. [Gibberish legal abbreviations, citations, and footnotes deleted.]As has been the case for years now, the Supreme Court demonstrates with nearly every opinion that it is merely exercising arbitrary authority, with no basis in the laws or the Constitution, and by principles which nobody can discern. (If anyone disputes this, I absolutely defy him to explain to me a scenario in which I could publicly display the Ten Commandments in a way that would be guaranteed to pass Supreme Court muster if the ACLU decided to challenge me on it, based on today's conflicting rulings.)
Scalia (who at one point says that this ruling "ratchet[s] up the Court's hostility to religion") decries this tendency, saying:
What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that--thumbs up or thumbs down--as their personal preferences dictate. Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, the Court acknowledges that the "Establishment Clause doctrine" it purports to be applying "lacks the comfort of categorical absolutes." What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that "[i]n special instances we have found good reason" to dispense with the principle, but "[n]o such reasons present themselves here." It does not identify all of those "special instances," much less identify the "good reason" for their existence. [Legal gibberish again removed]This is an aggressively secular Court that continues to rule by mere fiat--the very essence of tyranny. Remember that when the big Supreme Court nomination battle comes up.