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Does the Roberts Court Have a Pro-Church Bias? How They're Undermining the Separation of Church and State

The Roberts Court has consistently shown itself eager to hear and decide, along distinctly ideological lines, numerous controversial cases.

Separation of Church and State was one of the fundamental principles undergirding the new nation envisioned by the framers of the U.S. Constitution. Neither “God” nor any synonym for it appears anywhere in the Constitution. Article VI forbids any religious test “as a qualification to any office or public trust under the United States.” And even before granting the freedoms of speech, the press, assembly, and petition, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Taken together, the “Establishment Clause” and the “Free Exercise Clause” of the First Amendment impose a delicate, dual obligation upon government, under which Congress can neither empower religion nor restrict it. But now this cornerstone of American government is under siege, its foundation threatened by an agenda-driven Supreme Court.

The Establishment Clause

The phrase “separation of church and state” derives from a letter by President Jefferson in 1802 where he wrote: “Erecting the  wall of separation  between church and state…is absolutely essential in a free society.” The wellspring of American anti-establishment thinking, however, was Jefferson’s successor, James Madison—the principal drafter of the Bill of Rights. He believed the attempt to “employ religion as an engine of good citizenship” to be “an unhallowed perversion of the means of salvation.”

With Madison’s writings as its polestar, the Supreme Court has long interpreted the Establishment Clause as barring laws that favor one religion over another, or even religion in general over secularism. Government cannot declare any single religion to be the “true” religion; it cannot cede civil power to religious bodies; it cannot fund religious education directly or discriminate between religions in the distribution of funds. The Court has overturned numerous laws that violate the Establishment Clause, like those mandating bible reading, prayer, or the teaching of creationism in public schools. So important is the Clause that in the landmark 1986 case  Flast v. Cohen , the Warren Court facilitated its enforcement with a remarkable and unique sanction: it ruled that every taxpayer has legal standing to challenge, as a violation of the Establishment Clause, the appropriation of congressional funds to finance religious instruction in schools.

At other times, however, the Court has shown timidity in applying the Establishment Clause. In the 2004  Elk Grove Unified School District v. Newdow  case, for example, the federal Ninth Circuit Court of Appeals held that the words “under God” in the Pledge of Allegiance commonly recited in public schools violated the Clause. On appeal, the Supreme Court reversed the Ninth Circuit on purely procedural grounds. Michael Newdow, a California attorney and emergency medicine physician, had brought the suit on his daughter’s behalf. The Supreme Court held that because Newdow’s wife had primary custody of his daughter, he therefore lacked standing to sue by himself. The Court never considered the constitutional issue at all.

The “No Agenda” Roberts Court

No such timidity inhibits the Roberts Court. Its rulings suggest a “pro-church” bias, and have enfeebled and muddied the meaning of the Establishment Clause. In the 2007  Hein v. Freedom from Religion Foundation  case, the Court denied the taxpayer’s right to challenge government expenditures funding the Bush administration’s “faith-based initiatives.” In the 2011  Arizona Christian School Tuition Organization v. Winn case, the Court similarly denied Arizona taxpayers the right to challenge, under the Establishment Clause, tax credits for tuition payments to a parochial school. Both cases were 5–4 split decisions. In both cases, the  Flast precedent granting taxpayer standing to sue was marginalized and implicitly overturned.

In its  Hein decision, the Court didn’t expressly overturn  Flast, but instead held that the precedent didn’t apply because the challenged expenditure was by the executive branch rather than Congress. Only Congress, Alito wrote in his plurality decision, is constrained by the Establishment Clause. (Never mind that the executive branch is funded by Congress!) Justices Scalia and Thomas concurred with Alito’s opinion, but criticized it for creating “utterly meaningless distinctions” between executive and legislative expenditures. Instead, Scalia and Thomas favored overturning the  Flastprecedent outright.

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