Antonin Scalia, Baruch Spinoza, and the Relationship Between Church and State

STEVEN GOLDBERG Georgetown University Law Center

Abstract:

In his Theological-Political Treatise, Baruch Spinoza (1632-77) set forth an account of the proper relationship between church and state. The matter was of considerable personal import: Spinoza's ancestors were Jews who fled the Inquisition, and Spinoza himself was excommunicated from the Jewish community in Amsterdam. In his Treatise, Spinoza argued that the sovereign should respect freedom of belief, including religious belief. But he maintained as well that the sovereign should establish a religion consisting of basic moral teachings, and while other religions should be allowed to function, the sovereign should have authority over all external religious practices, including the power to review excommunications. There is a strong resemblance between these views and those expressed in the opinions of Justice Antonin Scalia. Scalia believes that while the legislature cannot attack an individual's beliefs, it should have broad authority to set the boundary between church and state. As is well-known, Scalia's Smith opinion holds that a neutral law that forbids religious practices trumps free exercise claims. But Scalia has also held in the nonestablishment area that legislatures are free to accommodate religious practices if they choose and to promulgate basic moral teachings. Moreover, by rejecting the substantive due process holding in Pierce v. Society of Sisters, Scalia affirms the power of the legislature to ban the use of religious schools as an alternative to public education. In areas ranging from flag burning to affirmative action, Scalia has not hesitated to overturn legislative choices. His strong deference when religion is involved logically leads him to a place similar to that Spinoza reached: secular authority to review excommunication decisions. If, for example, a legislature allows a cause of action for slander or trespass and does not exempt religious institutions, courts would have the authority to entertain certain lawsuits brought by excommunicated members of a religious group. The logic of Spinoza's position would lead him, for example, to support the dissenting opinion in a recent South Dakota high court decision rejecting a challenge brought by minority members of the Hutterian church against the actions of the majority.

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