The Supreme Court’s religious crusade
By: Frank S. Robinson
Tags: First Amendment, Church And State, Supreme Court, Religion, Establishment Clause

December 3, 2020

Robyn Blumner is a lawyer, CEO of the Center for Inquiry, and head of the Richard Dawkins Foundation. I recently heard her speak about the assault on church-state separation, focusing on the Supreme Court, which has a majority now on this mission (thanks to Trump’s three appointments).

The First Amendment decrees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Blumner said the two clauses must be read in tandem and in light of the history behind them. That included a Puritan colony where religious dissenters were hanged. The issue came to a head in Virginia in 1784 with proposed legislation for taxpayer funding of religious teaching. James Madison successfully fought it, arguing that state entanglement would corrupt religion. This idea of what Jefferson later called a “wall of separation” between church and state led to the First Amendment.

Thus Blumner contended that when they seek to give religion a governmentally privileged status, the Supreme Court’s so-called constitutional “originalists” are actually disingenuously ignoring those ideals and values that were originally baked into the document, as intended by the founders they supposedly venerate. She quoted the late Justice Scalia (who said the Devil is real and is mainly into promoting atheism) that the First Amendment does not bar the government from preferring religion over irreligion.

The Court was not always like this. Blumner referred to the 1965 Griswold decision holding that Connecticut’s (religion-inspired) law banning contraception violates an inherent constitutional right to privacy. (She didn’t mention 1963’s Abington Township v. Schempp, outlawing school prayer. I met Schempp. In a men’s room.) Blumner noted that Justice Amy Coney Barrett, in her recent confirmation hearings, refused to endorse the Griswold decision.

More recently the Court has been dominated by Scalia disciples. Thus the recent case of the (giant) Bladensburg cross, a WWI memorial maintained with taxpayer money. Only two justices (Sotomayor and Ginsberg) had a problem with this; common among the others was the idea that historical meaning gives the cross a constitutional pass. Blumner said this dooms efforts to remove monuments with religious symbolism from public property.

Other pertinent cases include:

• Espinosa, where the Court voided “Blaine Amendments” in most states barring state aid to religious institutions, holding that they can’t be excluded from programs of general public applicability;

• Our Lady of Guadalupe, barring Catholic School teachers from suing for employment discrimination, extending a “ministerial exception” allowing congregations to hire whoever they want as clergy;

• Burwell v. Hobby Lobby, holding that a private business can invoke religious beliefs to escape the Affordable Care Act’s requirement for contraception coverage in employer-provided health insurance; and

• Masterpiece Cake Shop, holding the baker was a victim of religious hostility when his state’s equal rights agency ruled his religious beliefs could not justify refusal to provide a cake for a gay wedding.

And coming up: the Fulton case, concerning a Philadelphia Catholic foster parenthood outfit, which claims a right to taxpayer funding while invoking religious doctrines to bar same-sex applicants. Blumner thinks they’ll win.

The result of all this: religious institutions can’t be excluded from public funding available to others; they’re held to lower standards of accountability; and religious beliefs exempt them from anti-discrimination strictures otherwise applicable. Blumner called this a recipe for ending the religious peace that America has enjoyed for two centuries thanks to the “wall of separation.”

She concluded by discussing Attorney General Barr’s Notre Dame speech deeming secularists’ “unremitting assault” on religion responsible for all the nation’s putative moral decline. Blumner called this delusional — indeed, having it backward. Because on basic measures of societal well-being, more secular nations (and within America, more secularized states) do better. And “if he wants to see moral depravity,” she said, Barr “should look at the guy he’s working for.”

Weeks after Blumner spoke, the Supreme Court voided New York’s covid-related restrictions as applied to religious gatherings. Admittedly the state’s rationale for how it came up with its seemingly inconsistent restrictions was unclear. Yet one would expect the Supreme Court to give a lot of deference, and the benefit of the doubt, to something so important as a state’s regulations aimed at protecting public health and safety — from which churches should not be exempt. Instead, the Court’s decision here yet again smacks of a principle privileging religion. Indeed, it now seems the Court’s true principle is simply that, in any case involving religion, religion always wins.

Very backward, when religion is inexorably losing ground to rationalism. That’s ultimately irreversible by the Court’s coddling of religion.