Alarm as US Supreme Court challenges separation of church and state | US Constitution and Civil Liberties


When America’s highest court ended the constitutional right to abortion after half a century, Louisiana Attorney General Jeff Landry knew who he wanted to thank.

“This is the day the Lord has made; let us rejoice and be happy,” he said in an official statement. “Today, with millions across Louisiana and America, I rejoice with my deceased mother and unborn children with her in paradise!”

The southern state’s top law enforcement official wasn’t the only Republican to refer to God during a victory lap. Nor was he alone in supporting the Supreme Court to pursue a pattern of forcing religion back into the American political system and tearing down the wall that separates church from state.

The court – said to be more pro-religion than at any time since the 1950s – concluded one of its most important and controversial terms this week. Critics have lamented a series of rulings that they say undermine legal traditions that prevent government officials from promoting a particular religion.

In May, the conservative majority came out in favor of a Christian group that wanted to fly a flag bearing a cross at Boston City Hall as part of a program to promote diversity and tolerance among different communities in the city.

Last month, they approved taxpayer money for students to attend religious schools as part of a Maine tuition assistance program in rural areas without nearby public high schools.

Then they backed a football coach at a public Washington state high school who was suspended by a local school district for refusing to stop leading Christian prayers with players on the field after games. The decision set aside a precedent from 1971, known as the Lemon test, which considered factors such as whether the impugned government practice had a secular purpose.

In all three cases, the court convicted government officials whose policies and actions were taken to avoid violating the constitution’s First Amendment prohibition on government endorsement of religion, known as ” establishment clause”.

A sign motivating Christian voters is seen on the side of a road near a church in Jackson, Mississippi, in September 2020. Photograph: Chandan Khanna/AFP/Getty Images

Furthermore, although their decision last week to overturn the 1973 Roe v Wade ruling that nationwide legalized abortion did not involve the Establishment Clause, it was celebrated as a decisive victory by religious conservatives. Mike Pence, the former vice president and born-again Christian, has called for a nationwide ban on the proceedings.

Paradoxically, the trend is set against the backdrop of an increasingly diverse and secular nation.

Last year, a Gallup survey found that Americans’ membership of places of worship fell below 50% for the first time, and last month Gallup found that the share of American adults who believe in God – 81% – was the lowest since she first asked the question in 1944.

White Christians made up 54% of the population when Barack Obama first ran for president in 2008, but now only make up 45%. Former President Donald Trump’s appointment of three right-wing justices, however, helped put the court on a very different path. And the nature of his decisions has been unusually sweeping and sweeping.

Robert P Jones, founder and chief executive of the Public Religion Research Institute think tank in Washington, said: “What we are seeing is a desperate power grab as the sun sets on white Christian America. In the courts, instead of moving slowly and systematically, it is a lurch.

Jones added: “In the meantime, we are going to end up with basically an apartheid situation in the United States where we are going to have a minority government by this shrinking group who have been able to seize the levers of power, even as their cultural democracy representation in the country is diminishing.

President Thomas Jefferson wrote in 1802 that the First Amendment should represent a
President Thomas Jefferson wrote in 1802 that the First Amendment should represent a “wall of separation between church and state.” Photography: Stock Montage/Getty Images

The Establishment Clause prevents the government from establishing a state religion and prohibits it from favoring one religion over another. Thomas Jefferson, the third president, said in an 1802 letter that the provision should represent a “wall of separation” between church and state.

Some far-right Republicans are now brazenly challenging that premise. Colorado Congresswoman Lauren Boebert reportedly said at a church service last Sunday, “I am sick of this separation of church and state that is not in the constitution. It was in a stinky letter, and it doesn’t mean anything they say.

In its trio of provocative rulings over the past two months, the Supreme Court has ruled that the government’s actions to maintain a separation of church and state have instead infringed on distinct freedom of speech rights. expression or free exercise of religion, also protected by the First Amendment.

In the ruling on school football coach Joseph Kennedy, conservative judge Neil Gorsuch wrote that the court’s goal was to prevent officials from being hostile to religion as they navigated the Establishment Clause . “In no world can a government entity’s concerns about phantom violations justify actual violations of an individual’s First Amendment rights,” Gorsuch said.

Rachel Laser, president of Americans United for Separation of Church and State, who represented the school board in the case, said the separation was “under complete attack” by the Supreme Court because it favors the clause of free exercise to the detriment of the establishment clause. , thus raising the specter of religious patronage.

“We are in danger of depriving large numbers of Americans of religious freedom, which should cause the founders of our country to somersault into their graves and I am sure it is alarming for the world as a whole, because they see America as a beacon of religious freedom.

The boundary between church and state has been crucial, according to Laser, to advances in LGBTQ equality, racial justice, reproductive freedom, protection of religious minorities, science education in schools and safeguarding democracy itself. But all of that is suddenly precarious due to the court’s conservative 6-3 majority.

She added: ‘The court gave in to a religious extremist agenda and implemented it by imposing a set of religious views on all of us and taking away a woman’s right to do with her body what her religious views and morals dictate, or taking away the right of a Maine taxpayer not to fund the education of a religion or religious discrimination with which he or she does not agree, or taking away the right to a Jewish or Muslim or atheist or Buddhist student in a public school not to feel obligated to pray in order to play and be included in public school.

Like Jones, Laser sees the court’s opinions as a backlash against America’s religious pluralism, racial diversity, an increase in women’s power in society, and the advent of marriage equality and progress on LGBTQ equality.

“This is a backlash that aims to strengthen and cement existing power structures in our law, and it panders to a white Christian far-right agenda. It’s incredibly divisive. It is dangerous for our democracy in this respect.

Unusually, the nine-member Supreme Court currently includes six Catholics: Chief Justice John Roberts, Samuel Alito, Amy Coney Barrett, Brett Kavanaugh and Clarence Thomas, all appointed by Republican presidents, and Sonia Sotomayor, seated by a Democrat. Last year, the court ruled that a Catholic social services agency in Philadelphia could ignore city rules and refuse to work with same-sex couples applying to foster adoptive children.

Unusually, the Supreme Court that handed down recent judgments on religion has six Catholics.
Unusually, the Supreme Court that handed down the recent judgments on religion includes six Catholics. Photograph: Getty Images

But although most of the court’s religious rights rulings in recent years have involved Christian plaintiffs, it has also backed followers of other faiths. These included a Muslim woman in 2015 who was denied a job in retail because she wore a headscarf for religious reasons and a Buddhist death row inmate in 2019 who wanted a spiritual advisor to be present during his execution in Texas.

The court has also sided with Christian and Jewish congregations in religious rights-based challenges to government restrictions such as limits on public gatherings imposed as public safety measures during the coronavirus pandemic.

The New York Times recently reported: “Since John Roberts became Chief Justice in 2005, the court has ruled in favor of religious organizations in orally argued cases 83% [now 85%] time. That’s far more than any court in the past seven decades — all headed by chief justices who, like Roberts, have been appointed by Republican presidents.

The change was welcomed by conservative lobby groups. Carrie Severino, president of the Judicial Crisis Network, said: “The recent pro-religious streak of court freedom shows how much it has evolved from previous decades. The majority of judges continue to demonstrate a clear record in protecting religious freedom and expression, which the constitution explicitly guarantees.

Activists and academic experts, however, warn that the emboldened six-judge supermajority is out of step with the will of the people on the government’s endorsement of religion and other issues.

Amanda Hollis-Brusky, associate professor of politics at Pomona College in Claremont, California, said: ‘It’s ironic, but it’s also a function of our system that creates so many opportunities for minority rule and it’s It’s something that we as Americans really need to consider. with: if this 18th century system still works for us in the 21st century. »


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