Nov. 24, 2004 Scalia in shul: State must back religion By URIEL HEILMAN NEW YORK U.S. Supreme Court Justice Antonin Scalia used an appearance at an Orthodox synagogue in New York on Monday to assail the notion that the U.S. government should maintain a neutral stance toward religion, saying it always has supported religion and the courts should not try to change that. Speaking at a conference on religious freedom in America hosted by the oldest Jewish congregation in North America, Manhattan's Cong. Shearith Israel, Scalia said America's founding fathers never advocated the separation of church and state and that America has prospered because of its religiousness. "There is something wrong with the principle of neutrality," said Scalia, considered among the court's staunchest conservatives. Neutrality as envisioned by the founding fathers, Scalia said, "is not neutrality between religiousness and nonreligiousness; it is between denominations of religion." Scalia cited early examples of support of religion in the public sphere by George Washington, Thomas Jefferson and Benjamin Franklin, the last of whom went so far as to argue for the institution of daily prayers at the Constitutional Convention in 1787. Today, Scalia noted, the government exempts houses of worship from paying real-estate tax, pays for chaplains in Congress, state legislatures, and in the military, and sanctions the opening of every Supreme Court session with the cry, "God save the United States!" "To say that the Constitution allows the court to sweep away that longstanding attitude toward religion seems to me just wrong," he said. "I do think we're forgetting our roots." Scalia's speech, at a conference marking the 350th anniversary both of Jews in America and of Shearith Israel, elicited a standing ovation. Scalia was nominated to the nine-member Supreme Court in 1986 by President Ronald Reagan to fill the seat vacated by William Rehnquist, who became the chief justice after Warren Berger retired. Now, with speculation that Rehnquist is on the verge of retirement after a recent diagnosis of thyroid cancer, Scalia may be the leading candidate to take his place. It is widely believed that President Bush will appoint a staunch conservative to the post of chief justice if he gets the chance, and the only other Supreme Court justice considered sufficiently conservative is Clarence Thomas, appointed by the first President George Bush. Originally from New York, Scalia wore a black skull cap as he addressed the congregation with his back to the synagogue's ark. "The founding fathers never used the phrase 'separation of church and state,'" he said, arguing that rigid separation of religion and state-as in Europe, for example-would be bad for America and bad for the Jews. "Do you think it's going to make Jews safer? It didn't prove that way in Europe," he said. "You will not hear the word 'God' cross the lips of a French premier or an Italian head of state," Scalia said. "But that has never been the American way." Most establishment Jewish groups, however, are staunch supporters of church-state separation. Earlier this month, for example, the American Jewish Committee was part of a coalition that won a lawsuit to block a Florida program allowing state aid to go to parochial schools. In 2000, the Anti-Defamation League led several Jewish groups in criticizing Vice Presidential candidate Sen. Joe Lieberman for talking too much about God on the campaign trail. Scalia said expunging religion from public life would be bad for America and that the courts, instead, should come around to most Americans' way of thinking and to the founding fathers' vision for the United States. He noted that after a San Francisco court last year barred the recitation of the Pledge of Allegiance in public schools because it includes the phrase "under God," Congress voted nearly unanimously to condemn the decision and uphold use of the phrase. "I suggest that our jurisprudence should comport with our actions," he said. If America's approach toward religion does change, it should be through democratic process, not "judicial fiat." America believes in "a personal God who takes an interest in the affairs of man," Scalia said. Quoting a line from Psalms that says the faithful will surely prosper, he added, "I think it is no accident that America has prospered."