“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 further than the mid-20th century,” Scalia wrote.”
What the courts have said, and yes their ‘say-so’ actually has weight of law, is that the government cannot show favoritism toward one religion, or another, or no religion, unless it passes certain tests, usually requiring some secular purpose. I suspect the justices would argue the accusation of ‘unsubstantiated’. Interpreted from the Constitution and quite substantial in its own right.
Justices can and have been on the wrong side of issues many times, that is the nature of interpreting founding documents when the founders are all gone. Times change, and it is up to them to decide what stays and what leaves.
The phrase “respecting an establishment of religion” is not so clear cut that it only comes into play if the government wants to actually create ( or sanction ) a national religion. In which one particular belief system is ok and the rest are second class, or worse. It has been interpreted to mean that the government cannot support or favor any particular belief system, it must remain neutral in those matters. It cannot promote or hinder the individual with respect to religion or lack of religion. The courts have the job of deciding what that neutrality should look like. The common sense answer would be to not support, either with money or power, any particular belief system. Neutrality. No religious symbols on public property, no religious reference on the money, no tax dollars supporting religion, no special privileges or tax breaks for religion, and certainly no religious coercion of children in publicly financed schools. I suspect if the public schools were to offer a true objective course on comparative religion, it could do so. I also suspect it would be the last thing the dominant religion(s) in this country would want. Talk about a generation of freethinkers.
Families are free to exercise their belief system at whatever institution they wish, teach their kids, give their money and time, etc. But the government should stay neutral. That is to avoid ‘respecting the establishment of religion’.
“Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion,” Scalia wrote in McCreary. “Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”
Justice Scalia may be right with respect to most religious observances in this country, but publicly honoring God and The Ten Commandments ( surely he can’t say that with a straight face ) only applies to the majority and that is exactly what the Constitution was trying to avoid, the majority deciding what religion is acceptable. He only reinforces the reason why the government must remain neutral. The Justice may have unwittingly became the poster child for the principle he was trying to refute.
And given the Establishment Clause is followed directly by the Free Exercise Clause (“or prohibiting the free exercise thereof”), one might also infer that the Founders felt that the ability to exercise one’s religion freely is a fundamental natural right. If that is the case, when it comes down to disputes over public displays of religion, it seems that the FFRF are the only party in these disputes actually threatening anyone’s constitutional rights.
Just the opposite, organizations like FFRF are working to make sure everyone, non-religious and religious, can practice their beliefs freely without government coercion.
The notion that the Constitution guarantees “separation of church and state” is an insidious myth, employed by militant atheists to keep Christian communities and individuals from celebrating their faith publicly.
The myth here is that this concept is to keep anyone from practicing their beliefs. Rather it is to keep that freedom safe. Perhaps a little reading on the works of Thomas Jefferson and others on their interpretation of the establishment clause. An ideal to keep everyone safe from the dominant religion using the government as a sponsor. Neutrality, plain and simple.