Ruth Bader Ginsburg

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

“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.

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Here we go again: U.S. Supreme Court gains even more power in America's culture wars?

Here we go again: U.S. Supreme Court gains even more power in America's culture wars?

The day after election day is, of course, a day for political chatter. Let’s face it: In Twitter America, every day is a day for political chatter.

This doesn’t mean that it’s impossible to see a few religion ghosts in all of this media fog — hints at the religion/politics stories that will soon return to the headlines. Let me start with a few observations, as a Bible Belt guy who just spent his second straight national election night in New York City.

* I didn’t think that it would be possible for the U.S. Supreme Court to play a larger and more divisive role in American political life than it has post-Roe v. Wade. I was wrong. Do you see big, important compromises coming out of the new U.S. House and Senate?

* Maybe you have doubts about the importance of SCOTUS in politics right now. If so, take a look at the U.S. Senate races in which Democrats sought reelection in culturally “red” states. Ask those Democrats about the heat surrounding Supreme Court slots.

* So right now, leaders of the religious left are praying BIG TIME for the health of 85-year-old Justice Ruth Bader Ginsburg and, to a lesser degree, 80-year-old Justice Stephen Breyer. After two battles with cancer, activists inside the Beltway watch Ginsburg’s every move for signs of trouble. What will conservative religious leaders pray for?

* If Ginsburg or Breyer exit, one way or the other, what will be the central issues that will surround hearings for the next nominee? Do we really need to ask that? It will be abortion and religious liberty — again.

* If the next nominee is Judge Amy Coney Barrett (a likely choice with GOP gains in the U.S. Senate), does anyone doubt that her Catholic faith (“The dogma lives loudly in you”) will be at the heart of the media warfare that results?

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