Scalia Says Public Religious Events Should Be Legal : Law: The Supreme Court justice, speaking in Newport, says government has a right to limit some observances, but the move toward ‘strict neutrality’ is wrong.

While the U.S. Constitution does not guarantee the right to all forms of religious expression, the Supreme Court should allow the “longstanding American tradition” of public religious observances on some occasions, Justice Antonin Scalia told a conference on Jewish and contemporary law Sunday.

Speaking to 500 judges, attorneys, law professors and rabbis, Scalia said government has the clear right to limit certain religious practices, such as animal sacrifice, ritual drug use and polygamy. But he said he regretted that the court has in recent years moved toward “strict neutrality” in interpreting laws governing religious practices.

“I do not think there’s any basis for thinking that the American Constitution requires neutrality between religion and irreligion,” Scalia said.

Citing a Rhode Island case in which he sided with the minority, Scalia strongly criticized the high court’s decision to outlaw non-sectarian prayer at high school graduation ceremonies. Scalia said it was a case “I most regretted losing,” because of its role in “striking down a long tradition.”

The Supreme Court sometimes develops rules Scalia called legal “abstractions.” In the Rhode Island prayer case, he said, the court majority developed just such a formula, condemning graduation prayer as “psychic coercion.”

Scalia told his audience at the Hyatt Newporter that he opposed this philosophy, which, he said, “makes the tradition bend to the abstraction.”

Describing himself as a “fairly centrist judge, by my standards at least” on religious observance cases, Scalia noted that he voted with a high court majority that ruled observant Jews in the military do not have a constitutional right to wear yarmulkes on duty. In the wake of the court decision, Congress voted to permit the skull caps, if designed and issued by the military.

The conference explored the contrasts and similarities between the 3,000-year-old Talmudic tradition of Jewish law and contemporary American case law. Jewish law, much like American case law, relies on precedent, said Rabbi Jack Simcha Cohen, of Congregation Shaarei Tefila in Los Angeles.

It is “not simply the precedent of law, but argument of logic to rationally think through issues, and not take things simply by rote,” he said.

Rabbi Adin Steinsaltz of Jerusalem, who is responsible for the definitive English translation of the Talmud, delivered the day’s other keynote address on the contrasts between the two legal traditions.

Earlier in the day, Steinsaltz and Scalia led a closed seminar for judges on “The Art of Judging.”