Opinion: The Supreme Court is on a religious crusade


HR King
May 29, 2001
By Paul Waldman
Yesterday at 1:02 p.m. EST

Conservative Christians have plenty of reasons to feel that their beliefs are not ascendant in modern America. But they have one unquestioned redoubt of power: the Supreme Court, whose majority is determined to keep widening their privileges, to excuse them from laws others must obey and to force government to change its rules to accommodate their beliefs.
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This week the court demonstrated it once again.
While they may not get the attention of decisions on abortion or guns, those justices have issued a series of rulings whose effect is to give a privileged position to conservative Christians, always in the name of “religious freedom.” By the time they’re done, the separation of church and state will seem like a historical artifact from a bygone time.

In the case heard Wednesday, the court’s majority made clear they are ready to require states to fund sectarian education. That had long been considered a violation of the Establishment Clause of the First Amendment, which limits the government’s ability to give explicit support to religious doctrines and institutions.

But this court cares about as much about the Establishment Clause as it does about the part of the Second Amendment that mentions “a well regulated Militia.”
The case concerns a program in Maine, which contains remote rural areas with too few students to justify the creation of a public school. In those places — which cover about 5,000 students — the state pays for kids to attend private schools, as long as the funds aren’t used for religious education.

The state’s position is that they are offering a substitute for public education. Just as parents in the rest of the state can choose to send their kids to religious schools if they want but would have to pay for it themselves, parents in these rural areas can do the same. The plaintiffs argue that the state should be forced to fund not just schools affiliated with churches but schools that feature an intentionally sectarian education.

According to the state’s brief, both schools these parents want the state to fund deny admission to gay students. One school has a social studies curriculum that seeks to “[r]efute the teachings of the Islamic religion with the truth of God’s Word.” The other requires staff to sign a declaration agreeing that “God recognize homosexuals and other deviants as perverted.”

At oral arguments, the conservative justices were deeply concerned that the parents who want the state to pay for such education are being discriminated against. “That’s just discrimination on the basis of religion right there at that — at the neighborhood level,” said Justice Brett M. Kavanaugh.

This isn’t the first time the subject of taxpayer money for religious schools has come up recently. In previous cases the court has said states can provide funds to support facilities and scholarships to such schools. But the court now looks like it could push the door open even further, by saying a state must fund schools whose central purpose is sectarian.

In the past decade or so, the conservative majority has given one victory after another to conservative Christians claiming either that they should be exempt from laws they find disagreeable or that government should have to give their institutions money and benefits despite their sectarian character.
They’ve won again and again, whether the subject was prayers at government meetings, public displays of Christian imagery, the Affordable Care Act’s contraception mandate, cakes for gay couples or a previous case on state-sponsored scholarships to religious school. Whether the rulings are sweeping or limited, the movement always seems to be in one direction.

It has all been guided by an idea that the justices won’t quite say out loud: that the way we have handled the Establishment Clause for decades is simply wrong. In this view, to not give favor to religion is itself to discriminate against religious people.

We often debate how “political” the court is, and this is an important aspect of that question. A number of the conservative justices are deeply engaged with the right’s argument that we’re living in the midst of a grand cultural battle between Christianity and secularism. In this rendering, the Establishment Clause itself begins to look like a tool of your enemies.
And it’s no accident that again and again these cases concern the rights and privileges of Christians — and not only because there’s a well-funded legal establishment of conservative Christian organizations and lawyers eager to litigate cases.

Those advocates know perfectly well that if these cases involved Muslim or Buddhist or Hindu groups that wanted the state to accommodate, honor and fund their religious expression and activities, the results could be very different. But because the court’s conservatives are all themselves Christian, they clearly feel an affinity with these plaintiffs.

They also seem sympathetic to the argument so common on the contemporary right that Christians are a kind of persecuted majority. Living in a society that increasingly incorporates pluralist mores and practices — such as “Happy Holidays” signs — constitutes oppression so brutal that government, the law and the Constitution itself must bend to lessen their burden. Protecting these noble victims requires steadily whittling away at the Establishment Clause.
Whenever this era in the Supreme Court’s history ends, we’ll have a very different legal system when it comes to church and state. You can bet that all kinds of plaintiffs are waiting to see just how far the court will go in dismantling that wall. They’re nowhere near done.