By Marshall H. Tanick
BridgeTower Media Newswires
The series of rulings by the U.S. Supreme Court upholding the rights of religious claimants during its tumultuous 2021-22 Term recalled a telling encounter during the nation’s formative era.
Emerging from the secrecy behind closed doors at the Constitutional convention in his hometown of Philadelphia in 1787, Benjamin Franklin was approached by an elderly woman who asked him, “What kind of government do we have?” The octogenarian Founding Father replied: “A Republic, madam, ... if you can keep it.”
That concept was embedded in Article IV, section 4 of the Constitution, guaranteeing to each state “a Republican form of Government.”
Republic risk
But the nature of the Republic is at risk of displacement by a judicially-created Theocracy, as reflected in those rulings of the U.S. High Court bringing to a close its momentous 2021-22 Term this month. Although not explicitly referencing religious grounds, the decision in Dobbs v. Jackson Women’s Health, 142 S.Ct. 228 (June 24, 2022) extinguishing the Constitutional right to abortion was the product in large part of religious objections to the practice.
More explicitly-grounded on religious bases was the ruling a few days earlier in Carson v. Makin, 142 S.Ct. 1987 (June 21, 2022) requiring public financing of tuition for students in alternative religious schools in Maine because it subsidizes sectarian private schools in sparsely populated rural areas, as well as a decision a day after Dobbs in Kennedy v. Bremerton School District, 142 S.Ct. 2407 (June 27, 2022), permitting prayer by a Seattle area public high school football coach at mid-field after a game with some players and other students.
The justices also, in a rare showing of unanimity in a ruling written by outgoing Justice Stephen Breyer, upheld the right of a Christian group to fly a flag bearing a Christian cross in the public plaza in Boston, along with several secular ones in Shurleff v. City of Boston, 142 S.Ct. 1583 (May 2, 2022). Although grounded on freedom of expression under the First Amendment, the case and its result had a clear religious overtone.
The case, incidentally, was decided the same day as a Minnesota Court of Appeals ruling permitting a Buffalo businessman to fly a huge banner extolling ex-President Trump on property that conflicted with the city’s zoning code Johnsonville, LLC v. City of Buffalo, 2022 WL 1297835 (Minn. Ct. App. May 2, 2022) (unpublished). That was a busy juridical day; within 24 hours a draft of the Dobbs ruling was leaked, six weeks before its official promulgation.
In the Maine tuition case, the main point made in the majority 6-3 opinion written by Chief Justice John Roberts was that the state system does “exclude otherwise eligible students on the basis of their religious exercise.” In the coach prayer case, Justice Neil Gorsuch, writing for the 6-3 majority, stated that the prayer must be granted to reflect “mutual respect and tolerance” for the coach’s religious beliefs.
In another religious-tinged ruling during the past Term, Ramirez v. Collier, 142 S.Ct. 1264 (March 24, 2022), the Court, in a decision written by the chief justice, overruled a lower court prohibition of a cleric accompanying a condemned murderer with prayer and to “lay hands” on him in the execution chambers. The case was sent back to the courts in Texas for further review after the Chief Justice observed that a completely forbidding the presence and practice of the inmate’s religious adviser was not “the least restrictive way” to accommodate the competing religious interests of the condemned prisoner and security concerns of the prison.
This splurge of religious rulings raises the real specter that the tribunal is turning from a judicial body into a theocratic agency.
Pattern present
While the pattern that is roiling the republic has been present for a while, by reflexively ruling in favor of religious claimants, the six conservatives on the court are decimating the long-standing separation of church and state, dating back to the early days of the republic.
Although not explicit in the Constitution, the principle is ascribed to a letter from another Founding Father, Thomas Jefferson, the drafter of the Declaration of Independence. The Virginian did not participate in the Constitutional Convention while serving as ambassador to France, as dramatized in the movie “Jefferson in Paris” starring in the title role thrice Academy Award nominee Nick Nolte, a three-year alumnus in the beginning of his career at the Old Log Theater here in Excelsior, and Thandiwe Newton as Sally Hemings, his slave-mistress and mother of some of his children.
Fourteen years later, in his first year as president, Jefferson wrote a letter referencing the Establishment Clause of the First Amendment as erecting a “wall of separation between church and state.”
In reaching these religious-related results during the past term, the high court departed from its own historical practice since the 1971 case of Lemon v. Kurtzman, 91 S.Ct. 2105 (1971), a case establishing a somewhat unwieldy, but serviceable three-prong standard for assessing religious freedom issues: the purpose of the challenged measure, its effect, and the entanglements ensuing from assessing the religiosity of the arrangement.
The recent spate of religious rulings has effectively laid to rest Lemon in accordance with the dismissive remark years ago by Justice Antonin Scalia equating the Lemon standard in Lamb’s Chapel v. Center Moiches Union Free Sch. Dist., 508 U.S. 384 (1993) to a “ghoul in a late night horror movie” that experiences Lazarus-like resuscitations after “repeatedly being killed and buried.” After the religious-related cases this Term, Lemon now belongs to the ages.
‘History’ and hubris
For a court that professes to rely, as it did in the Dobbs abortion case on “the Nation’s history and traditions,” and a day earlier in invalidating New York’s gun permit law on “historical tradition,” New York State Pistol & Rifle Assn. v. Bruen, 142 S.Ct. 2111 (2022), and then a couple of days later on “historical practices and understandings” in the Kennedy football-coach-prayer-case, the super-majority sextet now on the High Court is showing blatant and shameless disregard for any of these considerations.
To paraphrase the remark of Humpty Dumpty, the rotund character full of hubris, who falls off a wall in Alice in Wonderland, the phrase of history and tradition in the eye of the High Court seems to be “just what I choose it to mean – neither more or less.”
The recent spate of Supreme Court theoretic rulings stray from a Republic, and make a mockery of democracy.
If he were around to see what those half-dozen justices are doing to the “separation of church and state” doctrine, Franklin would probably tell them: “Go fly a kite.”
