Thursday, June 19, 2014

Justice Scalia's Stand Against "Degenerate" Music

by Michael Dorf

Dissenting from the denial of certiorari in Elbrook School Dist.  v. Doe (scroll down), Justice Scalia, joined by Justice Thomas, began thus:
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own 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.
Justice Scalia's analogy conflates two different meanings of the word public. The word sometimes refers to the government. Thus, cases that limit the expression of religious views on public property, i.e., government property, do so because some such expressions risk conveying the message that the government is endorsing a religious view. But "public" can also mean something like the opposite of private. And nobody thinks--as a matter of constitutional law--that religion must be a personal matter in the sense that individuals are forbidden from expressing their religion in public, even on public property, so long as it is clear that they are speaking for themselves rather than for the government.

So when Justice Scalia says that individuals have at least as much right to express religious views in public as people have to sing Let It Be or to play The Firebird in public he is expressing a truism with which no one disagrees.

It does not follow, however, that government religious expressions raise no more constitutional concerns than do government endorsement of rock music or Stravinsky. That's because the First Amendment forbids an establishment of religion, but no constitutional provision forbids an establishment of music. A New Jersey law declaring Born to Run the official state song might be a good idea or a bad idea (okay, it's a great idea), but a New Jersey law declaring Roman Catholicism the official state religion would violate the Establishment Clause.

As I noted in my post on the Town of Greece case, Justice Thomas thinks otherwise. He believes that the Establishment Clause forbids the federal government from interfering with a state establishment and maybe forbids the federal government from enacting a coercive establishment itself. Although Justice Scalia did not join the key parts of Justice Thomas's concurrence in Town of Greece, he may now agree with it, because he writes in his Elbrook dissent that "the First Amendment explicitly favors religion and is, so to speak, agnostic about music." One can indeed read the Free Exercise Clause of the First Amendment to explicitly favor religion, but unless one takes something like the view that Justice Thomas takes in Town of Greece, the First Amendment also explicitly disfavors religion.

Some observers thus understand Justice Scalia's Elbrook dissent to read the Establishment Clause out of the Constitution, and taken on its own, the statement that the First Amendment favors (but does not also disfavor) religion could be said to do just that. But I don't think Justice Scalia meant to go that far. Instead, I believe that his comparison of religion to music shows that even he thinks that the Establishment Clause plays some role in limiting state and local government. But the threshold for him is very high. He means the religion/music analogy to illustrate his view that Town of Greece and other cases demand coercion as the threshold for an Establishment Clause problem, not mere offense. Mere offense may connote endorsement of religion by government, but Justice Scalia thinks that such endorsement is constitutionally permissible.

Yet the analogy seems inapt for that purpose as well. Is Justice Scalia really offended by rock music and Stravinsky? His elaboration on the point demonstrates annoyance, but annoyance does not necessarily equal offense.

I certainly can imagine that Justice Scalia might be offended by the lyrics of some rock songs: Let's Spend the Night Together, for example, or, to use a loose definition of rock (as I'm guessing Justice Scalia doesn't distinguish genres of pop music), Wiggle might offend his views about appropriate sexual morality. But Stravinsky? I can see how Justice Scalia might not like Stravinsky; and that therefore having to listen to The Rite of Spring while riding on a municipal bus would annoy him; but even in the fantasy world in which Justice Scalia rides on the DC buses (which play Stravinsky!), why would he be offended rather than merely annoyed by the music he dislikes?

To be offended by music is to be offended on behalf of music. The sensibility goes something like this: Great music--as in the symphonies of Beethoven or the operas of Verdi--is the culmination of centuries of civilization. When people choose to listen to atonal noise rather than the classics, they degrade themselves. Their tastes are primitive, base, degenerate.

I doubt that there are many lovers of music or art who don't sometimes think something like the foregoing. Indeed, it would surprise me if every members of every generation did not think something like that about the generations that follow them. Baby boomers whose own parents decried the "noise" emanating from "long-haired hippies" now find themselves at a loss to understand how their children or grandchildren can prefer Ke$ha to Creedence. But it is one thing to find the music of younger generations unpleasant. To find it offensive requires a stronger moralistic sensibility.

And what are we to make of Justice Scalia's attack on Stravinsky, whose music is not being blasted by some young punk whose headphones leak R&B as he trespasses on Justice Scalia's lawn? (Get off my lawn!) Stravinsky was born in 1882, more than half a century before Justice Scalia.

I think the best explanation is that Stravinsky represents modernism for Justice Scalia. Justice Scalia's mission may sometimes seem like it is a fight against the legacy of the 1960s but his grievance goes deeper: He is fighting modernism (and, a fortiori, postmodernism). For Justice Scalia, Stravinsky's modernism--his departure from the order of baroque, classical, and (by comparison, at least) romantic music--is of a piece with, and perhaps not coincidentally occurred simultaneously with, the breakdown of formalism in law. Stravinsky stands in for the likes of legal realist Karl Llewellyn, who was Stravinsky's rough contemporary.

There is irony here. In his own day, Stravinsky campaigned against what he regarded as degenerate music, namely the atonalism of the so-called Second Viennese School of Schoenberg, Webern, and Berg. That juxtaposition--in which Stravinsky was the defender of the grand tradition in music against the degenerates--partly explains why the Nazis, who sought to stamp out degenerate art and music, appeared to be ambivalent about Stravinsky. (On the complexity of Stravinsky's own anti-Semitism, see this heated 1989 exchange in the NY Review of Books.)

I want to be extremely clear that in saying that Justice Scalia's offense-taking at modern music is reminiscent of Nazi attitudes towards degenerate art and music, I am in no way saying that Justice Scalia is like a Nazi in any morally relevant sense. I am saying, however, that there is in his moralization of musical taste an unpleasant combination of intellectual snobbery and reactionary politics.

18 comments:

Ben Alpers said...

And nobody thinks--as a matter of constitutional law--that religion must be a personal matter in the sense that individuals are forbidden from expressing their religion in public, even on public property, so long as it is clear that they are speaking for themselves rather than for the government.

But tens of millions of Americans believe that liberals, including liberal judges in their readings of Constitutional law, believe that Christians should be prohibited from expressing their religion in public. I read Scalia, among other things, as appealing to the conservative peanut gallery with his implication that the denial of cert is a step in the direction of this supposed liberal disideratum.

Joe said...

I agree with Ben Alpers that his framing touches the confused concerns of some that liberals don't want religious expression in public life. The whole "take God out of schools" deal, e.g., though even the strongest separatists on the Supreme Court protected religious expression, privately expressed, in that context.

Neil H. Buchanan said...

"Justice Scalia's mission may sometimes seem like it is a fight against the legacy of the 1960s but his grievance goes deeper: He is fighting modernism (and, a fortiori, postmodernism)." Yes, and I can't resist pointing to my posts last June regarding the Republicans' attack on the Enlightenment. http://www.dorfonlaw.org/2013/07/the-end-of-knowledge-and-reason.html. The Republicans don't just hate the Sixties, or the New Deal, or the Progressive Movement. They are hostile to critical thinking, political pluralism, and the very notion that people are created equal.

Unknown said...

"And nobody thinks--as a matter of constitutional law--that religion must be a personal matter in the sense that individuals are forbidden from expressing their religion in public, even on public property, so long as it is clear that they are speaking for themselves rather than for the government." -- Unfortunately, I have met such Individuals; They do Their particular "belief systems" a great disservice when I hear Them flip out about Someone makes an obscure reference to said Someone's faith. One Person in particular was literally froth at the mouth with anger after watching a debate where 1 Candidate made a small (~2 seconds long) reference to the fact said Candidate's faith. The inNeedOfAngerTherapy Individual in question was adamant the Candidate should be disqualified from public office for just such a reason and has no right to make such an obviously religious reference.

Michael C. Dorf said...

Unknown: Although I disagree with the view of the person you describe, I think that's not the same as objecting to individual expressions of religious faith. Some people follow a version of Rawlsian "public reason" in arguing that government officials and candidates for office should not advert to religious faith. So one could freak out about a candidate for office citing Jesus as his insipiration without freaking out about a non-candidate doing the same. (Of course, it's possible that your acquaintance freaks out about the latter; I just don't regard that as a position anyone seriously advances as a legal matter.)

Stuart McPhail said...

There are few positions that one cannot find at least a single crazed individual to defend. But yes, this semantic flip is a common argument: that a ban on government religion is equivalent to a ban on public practice of individual religions. I doubt Scalia isn't aware of the difference, though his statements in oral argument essentially treated the legislature as a non-governmental entity and simply the equivalent of a group of individual citizens. Under that light, prayer at the city council is legally equivalent to prayer in the public square.

But to your point about coercion and establishment clause. Doesn't applying a coercion test also write the Establishment clause out of the constitution? What work would the establishment clause do that would not be done by the Free Exercise clause alone?

I wonder what bite one would get with the conservative Justices by framing the Establishment Clause as a Federalism-like clause. I.e., one could take Thomas's view for pre-14th amendment 1st Amendment jurisprudence, and then find that the 14th amendment extended that federalism principle even further to individuals. So, say, whereas one might think the commerce clause carves out some area for exclusive state regulation, the Establishment clause does the same for *individual* regulation - that is, to regulate ourselves as we choose. The cause of action then does not depend on some coercion, but on the interference with a exclusive zone of control.

The question would then depend on standing. Either one could analogize to other federalism cases where a person can assert the interests of the state in protecting its zone of control, but only if the person has some other Article III standing. That would require injury, but I don't think the injury would have to meet the level of coercion.

On the other hand, under this reading of the Establishment clause, the person suing would actually be in the same place as a State. And if a State has standing to challenge a statute on federalism grounds on that a law invading its exclusive zone of control, and no further injury to the State is required, then so should an individual, even without a showing of other injury.

Bob Hockett said...

Very thought-provoking post, Mike - thanks so much. One quick thought on what seems to me most to separate Scalia from proponents of the 1920s-40s political sects that you mention: The latter seem to have been, paradoxically, quintessentially modernist movements themselves - modernist anti-modernist movements, as it were. They were mass movements that exploited crisis and attendant political hysteria by using the most modern techniques of mass media and mass manipulation - all in the name of a strange sort of comic book style mythologized nostalgia. (David Bowie once said, quite insightfully in my view, that Hitler was the first rock star.) Scalia, for his part, I think a genuine throwback rather than a modernist anti-modernist. He really IS just your curmudgeonly grandfather ('in my day, ...') - unless, of course, 'textualism' or 'originalism' themselves might be modernist (or postmodernist, or postmodern reactions to postmodernism) in the way that fascist comic book Norse or comic book Roman spectacle was. In any event, like you I reckon, I'm pretty sure Scalia probably would have been too individually contrarian to join any such movement as those that notoriously had governments burning 'degenerate' books and paintings. I am just as sure, however, that he would have been comfortable joining those mobs who burned Beatles records after John's remark about being 'bigger than Jesus' (at least if he wasn't too busy trying to become a bigshot at school or in government). In short, he's probably no modernist anti-modernist fascist or Nazi. He's merely an -hole. :)

Joe said...
This comment has been removed by the author.
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