The United States Supreme Court concluded its 2021-2022 term on Thursday. The new right-wing majority succeeded in adopting a broad radical program. Inventing a new legal doctrine, the Court has hampered modern administrative regulation. Major decisions have undermined COVID health regulations and all but stalled efforts to combat climate change.
In addition, the majority restricted civil liberties. Particularly disturbing to Jews, the judges paved the way for Christians to impose their religious beliefs on the rest of America. The Court has forced taxpayers to subsidize sectarian education in religions they do not profess or even abhor. The judges also allowed government officials to engage in official public Christian prayer. To understand the extent of the damage, one must look behind the content of the decisions. Faulty legal reasoning and legal controversies will lead to disturbing results in the future.
A superficial reading of the majority opinions in the two religion cases would lead to the conclusion that the Court rendered narrow and innocuous decisions. The first one, Carson v. Makin, called on Maine, which pays tuition for private schools in rural areas in lieu of public education, to support schools that explicitly teach fundamentalist Christianity. As their admissions policies violate the Civil Rights Act of 1964, these institutions cannot claim secular status. The second case, Kennedy v. Bremerton School Districtargued that the Constitution requires governments to allow school officials to pray on public property during school events.
Chief Justice John Roberts downplayed the effect of his ruling on carson. States that do not want to subsidize religious education need only decide to fund public schools exclusively. Judge Neil Gorsuch said the majority only demanded that the school district allow Kennedy, an assistant football coach, to pray silently after the games were over.
None of the disclaimers hold up in the real world.
The Chief Justice knows best. In a case involving Montana’s program to pay for playgrounds in secular schools only, the chief justice ruled that the state, which repealed the program after religious schools challenged it in court, should restore funding and include these schools. Maine and other states, like Vermont, that pay for private education in rural areas should continue to do so and now support religious education.
Moreover, on a practical level, the case of Maine has repercussions on all education policy. Many states provide vouchers for charter (state-licensed private) schools. For decades, most states, including New York, have awarded college scholarships to deserving high school students. Years ago, Chief Justice Rehnquist, no less, ruled that Missouri could deny a scholarship to a student seeking to use the money to attend theological school. In practice, states cannot repeal these entrenched and, in some cases, meritorious programs. Given the increased importance of a good education, states may wish to expand these opportunities in the future.
carson apparently demands that states help train priests and ministers (and, much to the delight of some Jewish organizations, rabbis). The movement for the separation of religion and state began in colonial Virginia, when the legislature attempted to pay the salaries of clergymen. Much controversy ensued; citizens objected to their tax money going to ministers who were not of their own faith and even to ministers in general. Support for religion, according to Thomas Jefferson and James Madison, must remain a matter of individual conscience.
Three centuries later, the Supreme Court is demanding exactly what the Founding Fathers fought so hard against. Ironically, the same Supreme Court that forces taxpayers to fund religions they oppose ruled a few years ago that anti-union public employees, who receive collective bargaining benefits from unions, do not have to pay dues because it would violate the First Amendment guarantee of free speech. .
The allegedly narrow opinion of Judge Gorsuch in kennedy barely fits the definition. He claimed that the assistant coach indulged in lonely, silent prayer on an empty football pitch after games. Kennedy, Judge Gorsuch wrote, did so as an individual, not in his official capacity. He did not force anyone to join him. According to the opinion, the decision demanded that the government allow only this form of religious worship.
The record seems to show otherwise. Justice Sonia Sotomayor’s dissent shows photos of the coach praying with groups of students and says Mr Kennedy brought politicians and the media to his devotions. Also, since the coach controlled the players’ time in the game, the students naturally felt compelled to join him. He acted in his official capacity and at least some prayed under duress.
Either way, bigger issues underlie the decision. First, the disdain with which the Court views legitimate religious dissent portends potentially disturbing decisions in the future. The Court belittled principled objectors to divine supplication (e.g., Jews having to listen to invocations “in the name of…the son and the Holy Spirit”) as “offended” spectators. Additionally, the majority characterized the objections as a “heckler’s veto” (an individual seeking to impose his solitary views on everyone else). This dismissive attitude shows a lack of empathy with religious pluralism and perhaps shows cultural arrogance.
Worse, the Court weakened the Establishment Clause of the First Amendment. For more than 50 years, the Court has used a sensible (if difficult to apply) test to determine the extent of permissible government involvement in religion. First, does the measure serve a secular purpose? Second, does the measure endorse religion? Third, will the government become excessively involved in religion as a result of the measure?
kennedy reversed this precedent. The new event is based on history and tradition. The problem with this approach: During the period in question (the founding era), the establishment clause applied only to the federal government. The federal government played a very small role in national life. Until the post-Civil War amendments, states could maintain official religions. Several states have done so. It wasn’t until 1925 that the Supreme Court applied the First Amendment to the states.
What story is the Court turning to? Since most challenges involve states, history plays no role, as the Establishment Clause has not applied for most of our history. Even the tradition of the federal government has its problems. President Washington proclaimed days of prayer and fasting, but not compulsory. Service academies and other institutions required compulsory Christian chapel attendance. The modern sensibility frowns upon compulsory fast days, chapel attendance and prayers.
Moreover, as the nation has become more religiously diverse, what used to be acceptable is no longer so. Nativity scenes and crosses on public property and the swearing on Christian Bibles and demonstrations of public prayer seem fine in a Christian society. The same goes for Sunday closing laws and for divorce laws reflecting Catholic theology, as happened in New York before the 1967 reforms. Dissenters’ challenges open everyone’s eyes to such oppression. The courts can then correct injustices and maintain harmony. Not anymore.