In the 1977 movie, "Oh, God!," the Rev. Willie Williams, a Billy Graham sound-alike played by Paul Sorvino, introduces a rabbi during an interfaith meeting with this bit of insincerity: "Rabbi Silverstone, my good and great friend and brother in the work of the Lord, with whom we have broke bread many times, is a pillar of the American Jew community."
I thought of the Rev. Williams when I read Justice Antonin Scalia's dissent last week in McCreary County vs. ACLU, in which the Supreme Court said that Ten Commandments courthouse displays in Kentucky violated the 1st Amendment. Scalia sounded his own happy ecumenical note in what he wrote.
"The three most popular religions in the United States, Christianity, Judaism and Islam -- which combined account for 97.7% of all believers -- are monotheistic," Scalia wrote. "All of them, moreover, Islam included, believe the Ten Commandments were given to Moses by God, and are divine prescription for a virtuous life."
How con-ven-ient, as the Church Lady might say, that Scalia discovered multicultural warrant for his thesis that posting the Ten Commandments in government buildings is not a 1st Amendment problem. ("Historical practices ... demonstrate that there is a distance between the acknowledgment of a single creator and the establishment of a religion," Scalia wrote.)
But Scalia was called on his 97.7% solution by his liberal colleagues. Justice David H. Souter, the author of the majority opinion and an Episcopalian, didn't find Americans as easygoingly ecumenical as Scalia suggested. "We are centuries away from ... the treatment of heretics in early Massachusetts," Souter wrote, "but the divisiveness of religion in current public life is inescapable."
An even more telling attack came from Justice John Paul Stevens in his dissent in last week's other Ten Commandment case, Van Orden vs. Perry, in which the court upheld a Ten Commandments monument on the grounds of the Texas Capitol.
Scalia is generally regarded as an "originalist" -- a believer that the Constitution should be interpreted from an 18th century point of view. Indeed, in his McCreary dissent, Scalia spent pages arguing the religiosity of Washington, Jefferson, Madison and more: "Those who wrote the Constitution believed ... that encouragement of religion was the best way to foster morality."
But Stevens turned "originalism" back onto Scalia. "The original understanding of the type of 'religion' that qualified for constitutional protection under the Establishment Clause," he wrote, "likely did not include those followers of Judaism and Islam who are among the preferred 'monotheistic' religions Justice Scalia has embraced in his McCreary County opinion. The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall."
Scalia attempted a riposte in his Van Orden dissent, saying that Stevens' argument created "a cloud of obfuscating smoke." But even if some of the framers of the 1st Amendment would have grudgingly included Jewish Americans among those protected by the amendment, it's highly unlikely that they would have included Muslims. (In his plurality opinion in the Texas case, Chief Justice William H. Rehnquist quotes a delegate to North Carolina's ratification convention who would have extended religious freedom to "Pagans and Mahometans," but that is arguably the exception that proves Stevens' rule.)
Just as interesting, from an originalist perspective, is the fact that the framers would have been as unlikely to open their arms to Scalia's Catholic religion.
For many Americans in the 18th century -- and later -- "papists" were an exotic and even un-Christian sect. At a time when conservative Catholics and evangelicals make common cause on abortion and homosexuality, it's worth recalling that it was the Protestant ethos of American public schools (including readings from the King James Bible) that in part impelled the establishment of Catholic parochial schools.
Catholics are pretty thoroughly assimilated these days, though when I wrote an article to that effect a few years ago, I heard from Catholics living in the Bible Belt who still felt marginalized in their communities.
But in deference to their ancestors, contemporary Catholics on and off the bench should think twice before assuming that they and their Protestant brethren -- let alone Jews and Muslims -- are automatically on the same side in the Ten Commandments controversy.