“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.
Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.
Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.
Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.
Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”
Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.
