Justice Scalia's dissent focuses largely on the Supreme Court's decision earlier this term in Town of Greece, reading that opinion more broadly than many commentators have so far done. Justice Scalia implicitly sees Town of Greece as impacting more than just invocations before legislative bodies, and says almost nothing about the special concern that the Court has shown historically for religious activities in public schools. He begins his dissent with this summary:
Some there are-- many perhaps-- who are offended by public displays of religion.... I can understand that attitude: It parallels mine toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
My own aversion cannot be imposed by law because of the First Amendment.Justice Scalia then goes on to argue first that Town of Greece abandons the "endorsement test" under the Establishment Clause, and that, second, it requires coercion amounting to more than mere offense to show an Establishment Clause violation. Lastly he emphasizes that the Establishment Clause should be interpreted according to historical practices and understandings, a consideration absent from the 7th Circuit's majority opinion. [Thanks to Marty Lederman via Rellgionlaw for the lead.]
