Under the U.S. Supreme Court: Scalia and the devil

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Wtiter
Supreme Court Justice Antonin Scalia testifies before the Senate Judiciary Committee Oct. 5, 2011. -- UPI/Roger L. Wollenberg
Supreme Court Justice Antonin Scalia testifies before the Senate Judiciary Committee Oct. 5, 2011. -- UPI/Roger L. Wollenberg | License Photo

WASHINGTON, Oct. 13 (UPI) -- Did Justice Antonin Scalia have to announce his belief in a literal Satan less than a month before the U.S. Supreme Court is scheduled to hear argument on government-led prayer? Yes, he probably did.

Someone asked him.


In a semi-playful interview in New York magazine conducted by Jennifer Senior, Scalia expounds on his judicial philosophy -- including his lonely 1988 dissent in a case upholding the Independent Counsel Act -- but public interest in his comments focused on his belief in the devil, heaven and hell, and on his remarks about popular culture.

Scalia, 77 and a devout Roman Catholic, has been on the Supreme Court for 27 years. He's known for his bluntness, and his lack of concern about how people react to it.

He also has a political tin ear. In 2009 Scalia and Vice President Dick Cheney spent part of a week duck hunting at a private camp in southern Louisiana -- just three weeks after the court agreed to take up the vice president's case involving lawsuits over secrecy and his handling of the administration's energy task force.


In the New York magazine interview, Scalia said he believes in heaven.

As for H-E-double hockey sticks: "It doesn't mean you're not going to hell, just because you don't believe in it," Scalia said. "That's Catholic doctrine! Everyone is going one place or the other. But you don't have to be a Catholic to get into heaven? Or believe in it? Of course not!"

At one point, Scalia leans in and whispers, "I even believe in the devil."

Asked to elaborate, Scalia said, "Yeah, he's a real person ... that's standard Catholic doctrine! Every Catholic believes that," rejecting a suggestion that many Catholics do not.

But he adds, "You know, it is curious. In the Gospels, the devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot. And that doesn't happen very much anymore. ... It's because he's smart. ...

"What he's doing now is getting people not to believe in him or in God. He's much more successful that way."

The justice tells Senior he's in the "mainstream."

"You're looking at me as though I'm weird. My God! Are you so out of touch with most of America, most of which believes in the devil? I mean, Jesus Christ believed in the devil! It's in the Gospels! You travel in circles that are so ... removed from mainstream America that you are appalled that anybody would believe in the devil! Most of mankind has believed in the devil, for all of history. Many more intelligent people than you or me have believed in the devil."


Scalia's right. One of the more recent surveys, a 2007 Gallup poll, shows belief in the devil rising, with a huge majority saying Satan is real.

Only 55 percent of the U.S. public believed in the reality of the devil in 1990. By 2007 that figure had risen to 70 percent, not many fewer than the 86 percent who said they believe in God.

Gallup News Service said the results are based on telephone interviews "with a randomly selected national sample of 1,003 adults, age 18 and older, conducted May 10-13, 2007." The margin of error was 3 percentage points.

Nevertheless, a 2008 speech by former Sen. Rick Santorum, R-Pa., caused a stir when it surfaced during the 2012 presidential election. Santorum, like Scalia the son of an Italian immigrant father, told a Catholic college audience in Florida that Satan was targeting American institutions, especially its colleges and the realm of politics.

The Catholic Church "has always held that the devil is real, not a mythical personification of evil," said.

"The church's teaching on the subject is clear from its liturgy. At baptism, those to be baptized are called upon to reject Satan, his works, and his empty promises. The church provides an official rite of exorcism, which presupposes, of course, the existence of Satan."


Addressing other subjects in the New York magazine interview, Scalia bemoans the partisan rancor in modern Washington.

"It's a nasty time. It's a nasty time," the justice tells Senior. "When I was first in Washington, and even in my early years on this [Supreme] Court, I used to go to a lot of dinner parties at which there were people from both sides. ... It doesn't happen anymore."

In the wide-ranging interview, Scalia said he has friends "that I know, or very much suspect, are homosexual, everybody does," but none has ever "come out" to him.

Since he is a hunter, Scalia said he watched one episode of TV's "Duck Dynasty," and regularly watched "The Sopranos."

But he saves his real appreciation for a comedy show.

"I loved Seinfeld," Scalia confesses. "In fact, I got some CDs of Seinfeld. ­Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!"

On Nov. 6, the six Catholic and three Jewish justices -- five conservatives, including the hard-line Scalia, and four liberals -- are set to hear argument in Town of Greece (N.Y.) vs. Galloway, which asks whether a legislative prayer practice violates the establishment clause of the First Amendment.


The establishment clause says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The restriction is extended to the states through the 14th Amendment.

The town said the prayers are constitutional, citing the high court's 1983 ruling in Marsh vs. Chambers. The 6-3 Marsh ruling said prayers at the beginning of sessions at the Nebraska Legislature, or any state legislature, are constitutional.

The debate will focus on the actions of a town supervisor, who recruited volunteers to open Town Board meetings with prayer.

"In this case, the court of appeals held that the Town of Greece violated the establishment clause by allowing volunteer private citizens to open town board meetings with a prayer," the town tells the Supreme Court in its brief. "Though the town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the town's prayer practice, applying an 'endorsement' test derived from Lemon [vs. Kurtzman]."

The famous, or in some quarters infamous, "Lemon test" articulated in the 1971 Lemon ruling said a government practice that affects religion is allowable under the establishment clause if it has "a secular legislative purpose, ... neither advances nor inhibits religion" and does not "foster an excessive government entanglement with religion."


Some members of the Supreme Court, particularly Scalia, have been trying to get rid of the Lemon test for decades.

The "endorsement" test is a product of 1989 Supreme Court reasoning in Allegheny County vs. ACLU, mostly by Justice Sandra Day O'Connor.

Lawyers for the two challengers in the case -- Susan Galloway is Jewish and Linda Stephens is an atheist -- paint a different picture than the town officials.

"The Town Board in Greece, N.Y., opens its monthly meetings with clergy-led prayer," the challengers tell the Supreme Court. "With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ, one asked attendees to recite the Lord's Prayer in unison and another criticized objectors to the prayer practice as an 'ignorant' minority. Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding 'Amen,' or making the sign of the cross. Members of the audience do the same."

If you want to participate in town affairs by attending a board meeting, the challengers say, you have to sit through Christian proselytizing. Children who have to attend the Town Board meetings as part of a high school civics-class requirement also are a captive audience, the challengers said.


In a surprise to some, the Obama administration has taken the town's side in the dispute.

"Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this [Supreme] Court has consistently disapproved of government interference in dictating the substance of prayers," U.S. Solicitor General Donald B. Verrilli Jr. tells the high court in a brief.

The administration agrees that Marsh, not an endorsement test, applies in the case.

"This [Supreme] Court's decision in Marsh vs. Chambers ... established that the practice of providing an opportunity for a prayer at the beginning of a legislative body's day or session, when not exploited to proselytize, advance or disparage any faith or belief, does not violate the establishment clause."

A number of states and 85 members of the U.S. House also have filed briefs in support of the town. So have more than 30 mostly Republican senators -- including possible presidential candidates Sens. Marco Rubio, R-Fla., and Ted Cruz, R-Texas.

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