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5 Supreme Court Decisions Pandering to Christianity

In these five cases, the Supreme Court dropped the ball on separation of church and state.

In theory, the Supreme Court is where Americans turn to protect their rights when all else fails. The high court is supposed to be beyond the reach of politics, and more importantly, beyond the reach of popular will. After all, just because many Americans want something doesn’t mean it’s constitutional.

This is true especially in matters of religion. Despite what many Americans believe, the majority does not rule when it comes to religion. Core freedoms depend on no vote. Most people in your town may sincerely believe that compelling students to say Christian prayers or learn creationism in public schools is a desirable – but that doesn’t make it legal.

In the main, the Supreme Court has done a pretty good job of upholding the separation of church and state. The high court has put the brakes on mandatory religious worship in public schools and barred direct tax support of sectarian enterprises.

But the court has made a few missteps along the way. That’s inevitable because as much as we’d like to think that the court is not a political institution, presidents do use the power of appointment to shape the bench, beyond their own terms in office.

Here are five cases where the Supreme Court dropped the ball on separation of church and state.

1. Holy Trinity Church v. United States (1892): Congress, in one of its periodic waves of anti-immigrant delirium, passed a law placing restrictions on the ability of American firms to hire laborers from overseas. Holy Trinity Church in New York, which had contracted with a minister in England to be its pastor, was accused of violating the law.

The Supreme Court ruled for the church. Justice David Brewer asserted that the law was intended to apply to manual laborers, not other types of workers. A minister, the court wrote, was a “toiler of the brain” and thus exempt from the act.

Unfortunately, Brewer did not stop there. He went off on a tangent and started compiling evidence of the religious nature of the American people. Brewer concluded, “These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”

Brewer’s diatribe is considered dicta, a legal term meaning writing not directly relevant to the case. But the damage was done. Holy Trinity has never been cited in the modern era and established no precedent in church-state relations, but it gave ammunition to Religious Right activists who still cite it today as proof that America is a “Christian nation.”

2. Zorach v. Clauson (1952): In a 1947 case called McCollum v. Board of Education, the Supreme Court struck down an Illinois law that allowed religious instructors to enter public schools during the day for “voluntary” worship and theological instruction.

In response, proponents of the idea tweaked the plan and came up with an idea whereby students would leave school during the day for religious instruction offsite. They called it “released time.” In 1952, the Supreme Court upheld released time on a 6-3 vote.

That was bad enough. For some reason, Justice William O. Douglas decided to expound on the religiosity of America. “We are a religious people whose institutions presuppose a Supreme Being,” Douglas wrote. He later added, “When the state encourages religious instruction or cooperates with religious authorities, it follows the best of our traditions.”

Douglas’ endorsement of symbolic union between church and state has been seized on by Religious Right advocates who have used it to justify official prayer in public schools and other schemes. Luckily, the Supreme Court has never fully embraced this line of argument. However, the Douglas passage has been used to buttress various forms of “civil religion” over the years.

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