Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]

Scalia and Counter-Majoritarianism

The oral arguments on the Ten Commandments seemed typical enough, but I get the sense that we’re going to lose this one, O’Connor swinging to the right. But I only want to direct attention to something Scalia said, which outraged the hell out of me. As found here:

Scalia agreed the message of the commandments is religious in nature but that the First Amendment’s original intent allowed such displays if erected by elected officials. “It’s a profound religious message, but it is a profound religious message believed by a profound majority of the American people,” he said. “The minority has to be tolerant of the majority view that government comes from God.”

So Scalia, the strict constructionist champion, found some place in the Constitution that speaks of the rights of the majority? Maybe he can point us there. And is there really a majority view that the “government comes from God?” There is clearly a majority of people who believe in God and support the existence of the Ten Commandments monument at the Texas State Capital, but it’s not quite the same thing to believe that the government is derived from God. Contrary to what the wingnuts might assert from time to time, there are numerous countermajoritarian principles to which our government adheres (2 senators from each state regardless of population – willing to give that up red states?). Judicial review is counter-majoritarian by its very nature. Scalia advances a dangerous proposition, one that I’ve seen pop up with alarming frequency at, which is that the majority on any issue can contravene the protections and rights that minorities have come to rely on. And Scalia even recognizes the ridiculousness of the argument by Texas that this particular reference to the Commandments has some secular purpose:

“If you want … to say that it only sends a secular message, I disagree with you,” he told Abbott at one point. Later, he added, “I really consider it something of a Pyrrhic victory if you win on the grounds of your argument.”

Attention has also been drawn to the fact that on the ceiling of the SCOTUS chamber is an engraved depiction of Moses holding one of the Commandment tablets. While I’m not thrilled that it’s there myself, the Moses depiction is contained within a larger diorama of other historical ‘lawgivers’ whereas the Texas State Capital hosts a large, readable, version of the Commandments which obviously convey a far deeper impression than the ‘ceiling Moses’. Additionally, only 2 of the Ten Commandments are actually ‘illegal’ under US law. What does that actually say about their pertinency as a ‘foundation’ for our existing law? Not a lot. Moreover, the two ‘illegal’ Commandments (stealing, killing) are illegal in every civilized country in the world – even those that didn’t enjoy judeo-christian origins.