VOICES: Supreme Court gets it right

Editor’s Note: This is in response to a column published on Aug. 2.

Conservative Supreme Court justices have been strongly criticized recently. Protestors have marched in front of their homes, and one was pressured into resigning his law school teaching position.

The thrust of the criticism, expressed recently in a guest column by David Madden on Aug. 2, is that the court is ignoring the constitutional “wall of separation between Church and State.” The Court is not ignoring the Constitution and is generally deciding cases as it should.

Justice Black first used the “wall of separation” imagery, taken from Thomas Jefferson, to encapsulate the meaning of the Establishment Clause. He enhanced the image by declaring that the wall “must be kept high and impregnable.”

From Black’s mischaracterization of the Establishment Clause many have come to believe that the Constitution prohibits government from enacting any laws reflecting concepts of morality rooted in religious ideas and from doing anything benefitting religion generally. It does not prohibit either of these. As noted years later by Justice Rehnquist, the phrase “wall of separation between Church and State” was a “misleading metaphor.”

The Establishment Clause states: “Congress shall make no law respecting an establishment of religion.” It does not contain the phrase “wall of separation between Church and State.”

The original purpose and effect of the Establishment Clause was to keep the United States from doing what most European nations had done – from establishing state churches, such as the Roman Catholic Church in Spain, the Lutheran Church in Denmark, and the Anglican Church in England. The Constitution prohibited the national government from enacting laws which would give preferential treatment to any particular denomination or sect of Christianity. It did not prevent religiously-derived ideas from shaping law, nor did it prohibit government from doing anything favoring religion generally.

Mr. Madden sees the recently decided Carson case as an example of how the current court is ignoring the Establishment Clause. In this case the court ruled that if a state is going to reimburse its parents who send their children to private schools, then it may not discriminate against those who choose schools operated by religious institutions. He states that in this decision the court ignored the original intent of the founders. Not so.

Original intent is seen most clearly in what Congress actually did when it ratified the Bill of Rights. At the very time it did so, it also re-enacted the Northwest Ordinance of 1787.

The ordinance authorized the use of government money to support schools in the federal territory northwest of the Ohio River. Congress explicitly subsidized and “encouraged” the teaching of “religion, morality, and knowledge” all of which it deemed “necessary to good government and the happiness of mankind.” The schools were, by and large, operated by religious institutions. The founders saw no constitutional problem with paying for schools to teach religion and morality, nor with religious institutions doing the teaching.

Mr. Madden fears that the decisions of the current Supreme Court might lead to the growing influence of religious leaders who will misuse their power to advance their own interests at the cost of the loss of “free civil government.”

Historically, the greater danger has come from anti-religious, would-be liberators who sought to free their people from the shackles of religion by establishing secular, “enlightened” republics. They have oppressed, enslaved, and killed. Prime examples are the French Revolution’s Reign of Terror, the Russian Revolution’s Gulag, and China’s current suppression of dissidents and religious minorities.

The current majority of the Supreme Court are reading and applying the Constitution as it is, not ignoring it. I appreciate their efforts.

Charles Pater is a retired judge and former high school history teacher.

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