Scalia Expressed His Faith With The Same Fervor As His Court Opinions

Feb 14, 2016
Originally published on February 17, 2016 3:39 pm

Antonin Scalia was just one of six Roman Catholic justices on the Supreme Court, but in his devotion to the faith he was second to none. Neighbors saw him and his wife, Maureen, worshipping frequently at St. Catherine of Siena in Great Falls, Va., a church Scalia was said to favor because it was one of the few Catholic parishes in the Washington, D.C., area that still offered a Latin mass.

Scalia received his secondary and undergraduate education at Jesuit institutions, and as a justice he told students that as a young Catholic he endured meatless Fridays and fasting before Communion because the church had taught him and his peers "that we were different." While other couples had small families, Scalia and his wife raised nine children. "Being a devout Catholic means you have children when God gives them to you," he told his biographer, Joan Biskupic.

The relation between Scalia's Catholicism and his judicial decision-making was complex, however. On one hand, his deeply religious beliefs may have reinforced the certainty of his convictions when it came to legal reasoning.

Paul Clement, who clerked for Scalia and went on to serve as solicitor general under President George W. Bush, told NPR legal affairs correspondent Nina Totenberg in an interview before Scalia's death that as justice he looked for "bright lines" in the Constitution wherever he could.

"I think he thinks that his faith provides him clear answers," Clement said, "and I think that's sufficient unto him in most areas."

On the other hand, Scalia vehemently denied that he let his Catholic beliefs dictate his legal judgment.

"I don't think there's any such thing as a Catholic judge," Scalia said in a 2010 interview. "The only article in faith that plays any part in my judging is the commandment 'Thou Shalt Not Lie.' "

Views In Religious Cases

He was personally opposed to abortion, but his legal views on the issue were somewhat more nuanced. He argued there is no constitutional right to abortion (and therefore disagreed with the 1973 Roe v. Wade decision), but inasmuch as it is not mentioned in the Constitution, he also argued that the government cannot prohibit states from permitting abortion.

As a committed Catholic, Scalia said he considered Pope Francis "the vicar of Christ," but he did not attend the pope's address to Congress in September 2015. Nor did the pope's fierce opposition to the death penalty alter Scalia's belief that the state has a constitutional right to impose it.

Advocates of religious liberty saw Scalia as a hero, citing his support for corporations that did not want to comply, for religious reasons, with the mandate under the Affordable Care Act to provide contraceptive services to employees.

But in a 1990 court decision, Scalia argued that the First Amendment's protection of the "free exercise" of religion did not necessarily mean people could use their religious beliefs as a reason not to obey generally applicable laws.

Writing for the majority, Scalia said, "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

That opinion was somewhat overtaken by the 1993 Religious Freedom and Restoration Act, which expanded the conditions under which people could claim a religious exemption from existing laws.

On the religious liberty issue Scalia was not always consistent. When it came to same-sex marriage, he took an especially hard line.

In his dissent to the 2015 Obergefell v. Hodges decision legalizing same-sex unions, Scalia argued that it was "extreme" for the court to endorse a practice "which is contrary to the religious beliefs of many of our citizens."

That opinion prompted Richard A. Posner, a judge on the U.S. Court of Appeals, to comment that Scalia seemed to be suggesting "that the Constitution cannot override the religious beliefs of many American citizens," a political ideal, Posner said, that "verges on majoritarian theocracy."

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We wanted to dig deeper into the roots of the late Justice Scalia's views. He made no secret of the fact he was a man of deep faith, a devout Catholic, so we were curious about how his faith may have shaped his opinions on the court. NPR religion correspondent Tom Gjelten has been thinking about that, and he's with us now. Tom Gjelten, thanks for joining us.


MARTIN: So did Antonin Scalia invoke his faith publicly? How did he talk about it?

GJELTEN: He talked often about his faith. But, you know, he said - he was very insistent on this - he said there's no such thing as a Catholic justice. He insisted that his legal reasoning was based on one thing, the Constitution. Now I think it's an understatement to say that he had the strength of his convictions. He was very opinionated, and those who worked closely with him or for him say that his faith probably contributed to the certainty of his convictions. You know, faith can do that to someone. So if he was doctrinaire, it wasn't necessarily a reflection of his Roman Catholic thinking. He had a very complex legal mind.

MARTIN: Well, let's give some examples. How about, say, an issue like abortion, which the Catholic Church vehemently opposes?

GJELTEN: Right. And he vehemently opposed it as a Catholic. And he said that the 1973 Supreme Court decision - famously Roe versus Wade, which legalized abortion across the country - was wrongly decided. But he didn't say that on moral or theological grounds. He said it on the basis of the Constitution. He said because abortion is not mentioned in the Constitution, the court has no business telling states they have to allow it. On the other hand, he said that also meant that the federal government could not tell states that they couldn't allow abortion. So he said it was a matter to be left up to the states.

MARTIN: So a more nuanced view than perhaps many people might realize that he had on it.

GJELTEN: Yes, right.

MARTIN: What about the issue of same-sex marriage? This an issue in which the Catholic Church has also been opposed. I mean, the recent pope, Pope Francis, has taken perhaps a more - many people might think a more nuanced view than previous people, but he also opposed it. Talk about that. Talk about his jurisprudence in this area.

GJELTEN: Here, he was much clearer in his opposition to same-sex marriage, and he went a little bit further in this regard. He basically said that people - there are valid religious grounds for opposing same-sex marriage and therefore, the government has to be very careful about overruling people's religious grounds. Now this actually bothered some people. In fact, Judge Richard Posner said that his views suggested that religious thinking could sort of overwhelm legislation and this could pave the way to a majoritarian theocracy, Judge Posner said. So in that regard, he was a little bit more extreme, but he still made a legal argument, not a theological argument.

MARTIN: I'd like to understand his views of religious freedom. Some recent Supreme Court decisions on the contraception mandate under the Affordable Care Act, on same-sex marriage have led some people to say that they believe that religious freedom is under threat in this country, and that has become an issue in the current presidential campaign. I'd like to understand his views of this because his opinions were those that aligned with a conservative view.

GJELTEN: They certainly were in the case of the contraceptive mandate under the Affordable Care Act, where he said that corporations had every reason not to through with that, not to comply with that. On the other hand, here again you have very nuanced views. If you go back to 1990, he wrote that the free exercise of religion did not necessarily mean people could use their religious freedom beliefs as a reason not to obey generally applicable laws. Writing for the court majority in this case, Scalia said to permit this would be to make the professed doctrines of religious belief superior to the law of the land and, in effect, permit every citizen to become a law unto himself. Now, Michel, to his dying day, advocates of religious liberties said they disagreed with this thinking in that specific instance, so he was not necessarily predictable.

MARTIN: Can you just give us just a sense of what you think his legacy will be in this area?

GJELTEN: I think his legacy will be that you can separate arguments between theological and constitutional grounds and even as a Conservative, you can base those arguments on constitutional grounds.

MARTIN: That's NPR religion correspondent Tom Gjelten. Tom, thank you.

GJELTEN: You bet. Transcript provided by NPR, Copyright NPR.