Fringe Trump-style conservatives propose a HUGE legal rewrite on religion in public life

All but overshadowed by the U.S. Supreme Court’s dramatic elimination of nationalized abortion rights, the just-concluded term was vital in terms of how the Constitution applies to religion.

There were moments of unity. The Court’s liberals joined emphatic rulings that Boston must allow the Christian flag to be shown on the same terms as other displays, and that a death-row inmate is entitled to religious ministrations.

But then there were two highly contentious rulings, both in June. The high Court said a football coach is free to openly pray on the field after games and that a Maine program must include sectarian high schools if it pays tuition for other non-public campuses. That second decision explicitly erased key doctrine on what constitutes an “establishment of religion” that the Constitution forbids.

The current Court has become “exceedingly accommodating of people’s religious views,” and is “blowing a hole in the wall between church and state,” summarized the displeased New Yorker magazine.

Reporters should be watching one conservative faction’s hope for more radical renovation on the “establishment” clause. The Religion Guy learned about this, of all places, in a June 28 Rolling Stone item about the friend-of-the-court brief filed in the football prayer case, Kennedy v. Bremerton, by the group America First Legal. AFL became a player in the political litigation game only last year.

Where to begin? Repeat after me: “incorporation” and “disincorporation.”

No, not the formation and dissolution of a business, but an extremely important and often overlooked doctrine in Constitutional law. Simply put, the Supreme Court has extended the rights guaranteed in the First Amendment to cover all the states because — believe it not — the U.S. Constitution as written involved only the federal government.

The first incorporation decision was in the 1925 Gitlow case, when it required New York State to recognize freedom of speech, followed by the Near case (Minnesota, press freedom, 1931), De Jonge (Oregon, freedom of assembly, 1937) and Edwards (South Carolina, petitioning government, 1963).

“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.