The transcript of the oral argument of the Texas Ten Commandments case is out. Justice Scalia makes the following comment:
20 JUSTICE SCALIA: It is a profound
21 religious message, but it's a profound religious
22 message believed in by the vast majority of the
23 American people, just as belief in monotheism is
24 shared by a vast majority of the American people.
25 And our traditions show that there is
1 nothing wrong with the government reflecting that. I
2 mean, we're a tolerant society religiously, but just
3 as the majority has to be tolerant of minority views
4 in matters of religion, it seems to me the minority
5 has to be tolerant ofthe majority's ability to
6 express its belief that government comes from God,
7 which is what this is about.
This is what Scalia wants, a country where minority religions are tolerated but where the majority religion gets a prefered place in government (ie express its belief through government action). But the Freedom of Conscience embodied in the First Amendment (and the no religious test clause) is more than about religious toleration by the government or by the majority. If fact "toleration" of religion was what was rejected. Thats what England had. George Washington's famous letter to the Hebrew Congregation in Newport makes this point clearly:
The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
See also Blackstone's Commentaries: with Notes of Reference (1803) by St. George Tucker. (1)
Even in countries where the crucifix, the rack, and the flames have ceased to be the engines of proselitism, civil incapacities have been invariably attached to a dissent from the national religion: the ceasing to persecute by more violent means, has in such nations obtained the name of toleration . In liberty of conscience says the elegant Dr. Price, I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or preeminence over their bretheren. Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all christians, but all men of all religions, ought to be considered by a state as equally entitled to it's protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encouragement of it's own mode of faith and worship a part of the constitution of the state; but at the same time thinks fit to suffer the exercise of other modes of faith and worship. Thanks be to God, the new American states are at present strangers to such establishments. In this respect, as well as many others, they have shewn in framing their constitutions, a degree of wisdom and liberality which is above all praise.
Tenche Cox (2) wrote in 1790
The situation of religious rights in the American states, though also well known, is too important, too precious a circumstance to be omitted. Almost every sect and form of Christianity is known here--as also the Hebrew church. None are tolerated. All are admitted, aided by mutual charity and concord, and supported and cherished by the laws. In this land of promise for the good men of all denominations, are actually to be found, the independent or congregational church from England, the protestant episcopal church (separated by our revolution from the church of England) the quaker church, the English, Scotch, Irish and Dutch presbyterian or calvinist churches, the Roman catholic church, the German Lutheran church, the German reformed church, the baptist and anabaptist churches, the hugonot or French protestant church, the Moravian church, the Swedish episcopal church, the seceders from the Scotch church, the menonist church, with other christian sects, and the Hebrew church. Mere toleration is a doctrine exploded by our general condition; instead of which have been substituted an unqualified admission, and assertion, "that their own modes of worship and of faith equally belong to all the worshippers of God, of whatever church, sect, or denomination."
See also Alexander Hamilton, Report on Manufactures 1791:
Manufacturers, who (listening to the powerful invitations of a better price for their fabrics, or their labour, of greater cheapness of provisions and raw materials, of an exemption from the chief part of the taxes, burdens and restraints, which they endure in the old world, of greater personal independence and consequence, under the operation of a more equal government, and of, what is far more precious than mere religious toleration, a perfect equality of religious privileges) would probably flock from Europe to the united states to pursue their own trades or professions, if they were once made sensible of the advantages they would enjoy, and were inspired with an assurance of encouragement and employment. . . .
The thing that bugs me most in some ways is that I am sure Scalia is familiar with this distinction between toleration and religious equality, yet he uses toleration specifically. And the toleration that he wants is that the minority "tolerate" the majority's right to use the state to proclaim the majority's religious beliefs. That is not religious equality.
(1) Tucker is known best for his edition of Blackstone's Commentaries and his other legal commentaries, including View of the Constitution, one of the first extended commentaries on the newly ratified Constitution. He is sometimes referred to as the "American Blackstone" for his Americanized version of a multi-volume of Blackstone's Commentaries on the Laws of England.
(2) American Political Economist, assistant to Alexander Hamilton, anti Federalist a second tier founder according to this article using him in support of the individual right under the second amendment.
(update, I have fixed the formatting, but only by removing the links)