5 Supreme Court Decisions Pandering to Christianity

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.

Douglas may have realized his mistake. He went on to become one of the high court’s strongest advocates for separation of church and state. As for released time, while in some parts of the country it’s popular (especially Utah where the Mormons have fine-tuned it to an art form), by and large it never really caught on.

3. McGowan v. Maryland (1961): Many states used to have laws regulating what stores could sell on Sunday. In 1961, two challenges to these “blue laws” reached the Supreme Court, one from Pennsylvania and one from Maryland.

Blue laws had never made much sense. Some commerce on Sunday is inevitable. Medicine and other health-related items could be sold, for example, as could Sunday newspapers, gas for cars and so on.

In Maryland, the law limited Sunday sales to food, medicine, gasoline and newspapers. Opponents argued that limiting sales on Sunday, the Christian Sabbath, violated church-state separation. They noted that blue laws were a throwback to the Puritan era.

Remarkably, the Supreme Court in McGowan disagreed. In an 8-1 ruling, the high court lamely asserted that blue laws, though they indeed originally had a religious purpose, had become secularized over the years. Their only purpose now, the court declared, was to provide a “day of rest” for weary retail workers. (Of course, many retail workers weren’t getting the day off. Lots of stores were open; they were just restricted in what they could sell.)

But even the court’s poor logic couldn’t save blue laws. The public wanted to shop on Sunday, and stores owners, eager for the extra profits, lobbied for change. Most states were only too happy to comply because they didn’t want to lose tax revenues to neighboring states that allowed Sunday shopping.

Blue laws began to fall. An echo of them still exists in some states where the sale of liquor is curtailed on Sunday or certain stores, such as auto dealerships, are closed.

4. Marsh v. Chambers (1983): If you’ve ever wondered why the House of Representatives, Senate and many state legislative bodies open their deliberations with prayers you need look no further than a 1983 Supreme Court decision called Marsh v. Chambers.

In Marsh, a legislator in Nebraska’s unicameral legislature sued over the practice of paying a chaplain to recite daily prayers. On the surface, it looked like an easy case, since government was not only endorsing prayer but paying for it.

The Supreme Court, however, ruled 6-3 that Nebraska’s practice was constitutional. The justices, it seems, were wary of making the ruling that the First Amendment demands: that taxpayer-paid religious ministers do not square with separation of church and state.

The high court dodged precedent and instead asserted that government chaplains have a long history in the United States and are thus traditional. The majority pointed out that the first Continental Congress had appointed state-funded chaplains, and thus no constitutional violation was found.

The justices did not consider that perhaps the first Congress had got it wrong. After all, an early Congress passed a “Sedition Act” that punished newspaper editors for speaking ill of government officials – an obviously unconstitutional bill.

Justice William Brennan was not taken in. In his dissent, Brennan pointed out that founding father James Madison opposed state-funded legislative chaplains, concluded that the practice had been unconstitutional all along and was not saved by its long history. He argued that the first Congress had acted more out of political concerns than respect for the Constitution some of them had helped draft.

5. Zelman v. Simmons-Harris (2002): In some states, your tax dollars fund Roman Catholic, fundamentalist Protestant and other religious schools that are free to preach homophobia, “creation science,” sexism and other repugnant ideas through voucher programs. How did this happen in a nation where religion has traditionally paid its own way?

In a close 5-4 ruling, the Supreme Court upheld Ohio’s voucher plan in the case Zelman v. Simmons-Harris. Justice Sandra Day O’Connor was the swing vote. O’Connor bought voucher advocates’ argument that the religious school aid scheme was merely one “choice” among others. Of course, the other choices were illusionary; they amounted to going back to public school or being tutored.

Thanks to the Simmons-Harris ruling, more states are implementing voucher programs, siphoning money away from public schools during a time when tax funding for education is already being slashed. To make matters worse, states almost never require oversight or accountability of religious schools that are awarded tax money. They simply cut the check and walk away.

The Dishonorable Mention: Minersville School District v. Gobitis (1940): Jehovah’s Witness parents brought this challenge to a Pennsylvania law that required public school children to salute the flag every day. Witnesses, who believe in pledging allegiance only to God and not to any earthly symbol, protested. The Supreme Court ruled 8-1 in favor of the state. The flag salute, the high court asserted, was a mainly patriotic exercise necessary to foster national cohesion. “National unity is the basis of national security,” declared the court.

The fallout from the decision was severe. Across the nation, Witnesses were assaulted, forced to leave their homes and even jailed. Their children were expelled from public schools.

Gobitis fails to make the top five because it was short-lived. Three years later, the Supreme Court reversed it in the case West Virginia State Board of Education v. Barnette. The high court held that public schools could sponsor the flag pledge but that they must excuse dissenters. Observed the court, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

What can we learn from this list? Mainly that as much as we would like it to be otherwise, the Supreme Court can be a political institution. Today’s court is delicately balanced on church-state issues, and many recent church-state decisions have been 5-4 rulings.

The president appoints justices, who then face a Senate vote. Except in unusual cases, they are confirmed. High court justices serve for life and can long outlast the presidents who appoint them. (Remember, it was President Ronald Reagan who appointed Antonin Scalia to the Supreme Court way back in 1986.) It’s something to keep in mind the next time you’re in the ballot box.

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