The Thin Wall Separating Church and State Comes Tumbling Down

The Thin Wall Separating Church and State Comes Tumbling Down

The Thin Wall Separating Church and State Comes Tumbling Down

What the Supreme Court did in its latest term puts us on a dangerous path that history taught us to avoid.


Last month was shockingly painful, with each new opinion from the Supreme Court worse than the last. In one week, the court ruled that Maine must subsidize tuition at private religious schools along with nonreligious ones, and it struck down Roe v. Wade. Taken together, these unrelated cases highlight the power of the religious right and bode ill for the future of civil liberties and civil rights.

The Bill of Rights was intended to prevent the perils of theocracy and the religious conflicts that have torn so many other nations apart by favoring religious exercise while opposing the establishment of religion by governing bodies. For years now, the court has prioritized the former at the expense of the latter. In 2017, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the court ruled that a church must be allowed to participate in a state program that provides direct taxpayer grants to improve school playground surfaces. In her dissent, Justice Sonia Sotomayor concluded that the court changed the relationship between religious institutions and government “by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” Justice Sotomayor warned that the court’s expansive view of the Free Exercise Clause was “lead[ing] us…to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

In Carson v. Makin, the court has led us to that place, holding that Maine must fund religious education at private religious schools as part of its tuition assistance program, which pays for students to attend private school if their town does not have a public high school. The decision marks the first time that the court has explicitly required taxpayers to support a specifically religious activity—namely, religious instruction.

As Erwin Chemerinsky, dean of UC Berkeley School of Law, points out in a Los Angeles Times op-ed, the court has long applied the principle separating church and state to limit the government’s ability to provide public funds for religious activities:

This followed James Madison’s view that it was abhorrent to tax people to support the religions of others. The central idea is that the government and its use of funds should be secular. But now the law has shifted dramatically, and not only is the Supreme Court allowing aid to religious schools, it is saying that it is constitutionally required.

This, as Chemerinsky concludes, “completely ignores the First Amendment’s prohibition on the establishment of religion.” (A week later the court held that a public school football coach could not be prohibited from praying on the field after a game, disregarding the long held view that any prayer in public schools is inherently coercive and violates the Establishment Clause.)

Having breached, if not obliterated, the long-standing wall of separation between church and state, the court then embedded conservative Christian teaching in the law by overturning the constitutional protection for abortion that had been in place nearly 50 years.

At the time the Constitution was adopted, as Professor Geoffrey Stone explains, “abortion was legal in every state” and “fairly common”—indeed, no state prohibited it before quickening, when fetal movement is first detected, typically between 16 and 20 weeks of pregnancy. Although half the states prohibited it after quickening, “very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era,” said Stone, the Edward H. Levi Distinguished Professor of Law at the University of Chicago. But during the Second Great Awakening in the early 19th century through the 1840s—when, as Stone points out, many Americans began to refer to this as a “Christian nation”—the country experienced the “first serious effort to interfere with reproductive freedom.”

For example, in 1845, New York enacted legislation to prohibit abortion “without regard to whether the abortion was pre- or post-quickening and it applied even to the woman herself,” which, as Stone concludes, “was a radical departure from the English common law, the law in the American colonies, and the law in the United States until that time.” Over time, the New York law spread throughout the nation, such that by the end of the 19th century, “every state had enacted legislation prohibiting abortion from the very moment of conception.” This reflected a growing consensus among conservative Catholics and Protestants that life begins at conception.

As professor Katherine Franke emphasizes, we must recognize that Dobbs is a decision based on religion, not science or best practices in medicine. We are at or close to a point “where it is the official policy of the United States Supreme Court—and more than a majority of state legislatures—that life begins at a certain time. That is absolutely a religious decision, but one that is now passing as secular in nature,” said Franke, the James L. Dohr Professor of Law at Columbia University. Indeed, this decision is not just generally about religion but certain Christians in contrast to believers of other faiths “for whom providing the full spectrum of reproductive health care is consonant with their faith, if not determined by it.”

The fact that conservative Christian beliefs have been elevated—white evangelicals are the only religious group that overwhelmingly opposes abortion—should be of grave concern.

In the context of abortion, it demonstrates a complete disregard for the health and the lives of women, girls, and trans and gender-nonconforming people, ignoring the fact that carrying a pregnancy to term is 14 times more likely to be fatal than having an abortion. More broadly, it signals where the court is headed. It is no accident that Justice Thomas, in his concurring opinion in Dobbs, calls into question the continuing validity of Griswold, Lawrence, and Obergefell—precedent involving access to contraceptives, same-sex intimacy, and marriage equality, respectively. What ties these cases together, more so than their grounding in the legal principle that the Fifth and 14th amendments protect fundamental rights from government interference, is that they conflict with conservative religious beliefs that sex should only occur within marriage, between a man and woman, for purposes of procreation.

Giving primacy to a particular religion or its religious beliefs, as the court has done, puts us on a dangerous path that history taught us, and the First Amendment requires us, to avoid. To resist and defeat this effort, we must face the situation boldly and recognize that all our movements for freedom and equality are inextricably intertwined with each other. Indeed, we must organize, mobilize, demonstrate, and vote to maintain the separation of church and state and to protect and promote the rights of women and LGBTQ+ people, but only if we also end the mass disenfranchisement of people of color will we unleash our collective roar for human rights and dignity. 

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