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The Separation of Church and State

From the Advocacy Committee

September 24, 2023

The Supreme Court and the Separation of Church and State

While there are nine Justices on the Supreme Court, many recent cases are being decided by the six ultra-conservative Justices, all of whom were appointed by Republican presidents. Three of these Justices were appointed by President Trump. These six Justices were appointed with the implied expectation that they would overturn Roe v. Wade.

In addition to overturning Roe, The Court’s recent decisions on the separation of church and state evince their strong support for religious practices rather than the Constitutional principle of separation of church and state. The concept of separation of church and state is set out in the U. S. Constitution’s First Amendment, which states, “Congress shall make no law respecting the establishment of religion.” This sentence, the Establishment Clause, in its simplest form, prevents the government from establishing an official religion or supporting a specific one.

One recent example of the Court’s dismantling of the barrier between church and state is Carson v. Makin. The issue in Carson was whether Maine could allow school districts to pay tuition at private schools but exclude religious private schools. The record was clear that the religious schools challenging the Maine law would be teaching religion as part of their curriculum. The six-member conservative majority, rather than relying on the Establishment Clause, decided that Maine could subsidize private schools but could not discriminate against religious schools. The effect of the decision is to have Maine taxpayers pay for religious education. The three liberal Justices at the time - Bryer, Sotomayor, and Kagan – dissented. Justice Sotomayor wrote that Carson was a decision, in fact another decision by the conservative majority, breaking down “the wall of separation between church and state that the framers fought to build.

Another recent case, Kennedy v. Bremerton School District, in which the conservative majority put aside the requirements of the Establishment Clause focused on a half-time high school football coach who, despite a school prohibition on his conduct, insisted on praying on the fifty-yard line following games. Players on his team and eventually the opponents’ team members, spectators, and reporters would crowd around him. He was fired, sued the school, and the Ninth Circuit Court of Appeals sided with the school district. The school argued that under the Establishment Clause they could prohibit his conduct, and that his conduct was disruptive and placed pressure on his players to join him. The six-member conservative majority sided with the coach, finding that the prohibition violated his First Amendment right to free speech and his free exercise of religion.

Again Justices Sotomayor, Bryer and Kagan dissented. Sotomayor wrote that the decision “elevates one individual’s interest in personal religious exercise over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”

While not an Establishment Clause case, Dobbs v. Jackson Women’s Health Organization was another one with strong religious overtones. In Dobbs, the Court’s conservative majority overturned Roe v. Wade, which had established the Constitutional right to abortion almost fifty years before Dobbs reached the Court. During their confirmation hearings and meetings with

Senators, numerous members of the conservative majority extolled their strong belief in precedent, but the members of this extraordinarily activist conservative majority have little respect for precedent. While some suggest that, because the six conservative Justices were appointed by Republican presidents, the Court’s decisions limiting the application of the Establishment Clause and ending rights such as the one established by Roe are political, but to many, the decisions seem to be animated by the conservative majority’s religious values

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