The Passing of a Patriot

With the sudden death of Supreme Court Justice Antonin Scalia, the Jewish community lost a friend and the American people lost a tireless fighter for moral values and a staunch defender of religious liberties.

As the political battle begins whether the successor to Justice Scalia should be nominated by the sitting president or the choice should wait until at least next January for the next occupant of the White House, it is highly unlikely that Scalia’s replacement — whoever that may be — will share both his defense of religious rights and his fierce opposition to those who seek to reinterpret the Constitution in a manner that allows them to impose their radical left-wing views on the citizens of this country.

In 2009, Scalia gave Hamodia a rare interview, in which he passionately defended the role that religion plays in America.

“It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion,” Scalia declared.

“There is a quote attributed to various people from Bismarck down to Charles de Gaulle. I prefer to attribute it to Charles de Gaulle because it sounds like him,” the Supreme Court justice remarked.

“‘G-d protects,’ he said, ‘little children, drunkards and the United States of America.’ I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our presidents invoke Him, my court opens its sessions with ‘G-d save the United States.’ Those things are not insignificant.”

In the same interview, Scalia stressed the “inherent toleration of the American people” as a key defense for religious liberties even when no constitutional right existed.

“The American people respect religion and make exceptions for it,” he said, pointing towards the religious exemptions for the Quakers from military service even when there is a draft, and during Prohibition the exemptions that allowed the use of wine for religious services.

“Generally speaking, you should not worry about ritual slaughter or any of the customary Orthodox practices, as I do not worry about liturgical wine,” Scalia, who was Catholic, told Hamodia.

Unfortunately, the moral landscape of America has drastically changed over the past six-and-a-half years, and more than at any other time in American history, there is every reason for Torah-observant Jews to worry not only about the badly damaged moral fabric of the United States but also about their own religious freedoms.

With Scalia on the bench, the Supreme Court has handed down several important rulings for religious rights in recent years, including the landmark 5–4 decision in the Hobby Lobby case.

With his death, the fate of similar cases is now very much in doubt.

For instance, among the cases now before the Supreme Court is a suit against the Affordable Care Act — better known as Obamacare — by a Catholic group known as Little Sisters of the Poor and a number of co-defendants who claim that the present protocols of the health-care law force them to be a party to the delivery of medical services that violate their beliefs.

As indicated by the friend of the court briefs filed by an array of Jewish organizations, the decision in that case could have serious implications for the religious rights of Torah Jews throughout the country.

In that case, an essential part of the argument is whether it should be up to politicians or judges to decide whether a specific religious practice is important, and whether it should be considered a “substantial burden” — as the Obama administration is insinuating — or up to the individual practitioners.

Last June, Scalia wrote a scathing dissent to a decision that shattered the country’s longstanding social structure and struck a painful blow to the moral fiber of America. In his opening paragraph he explained why he was bitterly opposed to the view of the majority of members, and also illustrates why Scalia will be so sorely missed.

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention,” Scalia wrote.

“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

We couldn’t agree more.