Scalia: Church-State Standing is the “Greatest Miscarriage of Constitutional Justice”

Scalia: Church-State Standing is the “Greatest Miscarriage of Constitutional Justice”

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Written by Don Byrd
Responding to questions following a lecture on Christian virtue and economics, Supreme Court Justice Antonin Scalia said the standing to sue the government for violating the separation of church and state without having one’s free exercise rights violated represents “the greatest miscarriage of constitutional justice” from the court during his tenure. Scalia was speaking at the Lanier Theological Library in Houston on Friday.

The Houston Chronicle has a transcript of the exchange.

Q: What is the greatest miscarriage of constitutional justice during your tenure?

A: “Oh, there are many candidates. … The most disreputable area of our law is the establishment clause. (Congress shall make no law respecting the establishment of religion.) … A violation of the establishment clause that does not affect someone’s free exercise – there is no reason why you should have standing.

The Supreme Court generally does not require a plaintiff to demonstrate a violation of free exercise rights to allow a challenge to the Establishment Clause, in part because many violations of church-state separation could not be challenged in court at all if that were the rule, leaving the enforcement of that provision up to the political process. But politicians are less likely to remedy government endorsements of religion when the government is perceived as supporting the majority’s religion. Allowing plaintiffs to bring suit and challenge, for example, Ten Commandment displays, official government prayer or other government-sponsored displays of faith, is the best way to preserve the rights of minority faiths.