It’s clear the Supreme Court couldn’t care less about history, judicial precedent, basic consistency or common decency.
Rather than follow a coherent judicial philosophy, the rightwing swings wildly from one theory of interpretation to another to suit their political agenda, not legal principles.
While cases on guns strike down state’s rights and cases on abortion valorize them, there is one consistent underlying principle to the majority of decisions in the last two years.
A movement toward white Christian theocracy.
This past term the Supreme Court overturned Roe v. Wade (removing federal protections for abortion), allowed state tuition to go to religious schools and ruled that a public school football coach had a right to pray on the school’s football field
While these cases are extreme and violate precedent, many cases in the court’s history have privileged Christianity.
Christmas trees and other Christmas holiday decorations have been treated as “secular” celebrations of a national holiday. “Blue laws” that require businesses to be closed on Sunday are constitutional (they apparently somehow have a “secular” purpose because Christian practice is secular and neutral), but laws protecting the right to take off on the sabbath (you know for those pesky non-Christian people) are not.
Time and again Christianity is treated as the default and therefore the protection of the practices as “secular” while other religious practices are treated as explicitly religious.
In the latest bad decision in a string of bad decisions issued this term, the rightwing ruled that a football coach, Joseph Kennedy, had a constitutional right to pray on the 50-yard line on a public school’s football field after the game.
The coach didn’t just quietly pray for himself after the games. Students and others joined the prayers he publicly led.
To side with Kennedy, Justice Gorsuch claimed he wasn’t acting in his role as a coach when he prayed postgame.
However, if he wasn’t acting as the coach why was he even praying on the 50-yard line after the games?
Additionally, whether students joined or not could very possibly affect the students’ relationship with their coach. So the actions necessarily relate to his professional role.
Gorsuch argued that students not only wouldn’t feel pressured to join the prayers but that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” (Clearly something Justice Gorsuch thinks only needs to be learned by non-Christians and marginalized groups.)
To come to this decision, the court had to ignore precedent about the Establishment Clause in the First Amendment that prohibits the state from “establishing” a religion.
The accepted test for considering the Establishment Clause came out of Lemon v. Kurtzman (1971). The three-part test required that law have a primarily secular purpose, that it neither aid nor inhibits religion in its principal effect and that government and religion must not be excessively entangled.
A coach employed by a public school praying after football games clearly has no secular purpose and aids religion in its principal effect. However, Gorsuch dismissed the test as having been “long ago abandoned.” Instead, Gorsuch uses some vague appeal to “historical practices and understandings” to analyze the Establishment Clause.
The historical interpretations of the Establishment Clause treat non-Christian religions differently from Christian practices. Gorsuch’s suggestion to adhere to historical understandings for analysis would likely necessitate a more Christian application of the law. After all, historically, freedom of religion (especially at the state level) meant freedom of any Christian (or even just Protestant) religion.
In an earlier decision this term, Carson v. Makin, the Supreme Court ruled that a state tuition program can’t exclude religious schools. Doing so violates the free exercise of religion.
Maine has a tuition-assistance program that allows students to go to certain secular private schools, especially students in rural areas of the state where a public school isn’t close by.
The court ruled that if money is given to private schools, it can’t exclude religious ones. Makin is distinguished from court precedent that allowed federal funds to go to religious institutions that use the funds for non-religious activity.
In this case, if federal funds are being used for religious school tuition, those funds will be supporting explicitly religious activity as the education in such schools is not purely secular.
While Justice Alito’s opinion in Dobbs v. Jackson Women’s Health doesn’t explicitly cite Christian support for overturning Roe, white Christian myths about abortion are the entire foundation for the opinion. This country was built on white Christian principles so any appeal to only supporting rights that are “deeply rooted in the nation’s history” will privilege white Christianity. The entire history of reproductive control as well as the anti-abortion movement is deeply linked to slavery and the racist “white replacement theory.”
Conservatives and even justices have not been shy about their plan to use a dismantled Roe as a first step toward undoing a number of other civil-rights cases. Alito links the legal foundations of Roe to Griswold v. Connecticut (the right to birth control), Lawrence v. Texas (protection of private sexual acts concerning gay men), Obergefell v. Hodges (same-sex marriage), and even Loving v. Virginia (interracial marriage).
While Justice Alito claims this connection is not meant to suggest these cases be overturned (it's not convincing), Justice Thomas’ concurrence explicitly calls for revisiting all these cases (except for Loving). There is no justification to treat gay sex or gay marriage differently except for religious reasons (or the white Christian history of the country).
While the conservative justices and politicians typically cite Brown v. Board of Education (which overturned Plessy v. Ferguson to outlaw segregation in public schools) to justify overturning long-held precedent, overturning Loving and Brown seems to be the logical endpoint of this journey.
Some conservatives openly call for such action. Others directly link overturning Roe with racist motivations and white supremacy, like Illinois Congresswoman Mary Miller, who called the Dobbs decision a “victory for white life.”
Carson is also a big win to chip away at Brown, as a strategy to fight desegregation in the south was to send kids to private “white” academies. The more money that can go to private, Christian schools, the more segregated public ed can be.
Most of the decisions discussed in this article have a fig leaf of justification. They aren’t explicitly racist or explicitly Christian-focused. But when analyzed together, the only logical consistency is their reliance on white Christian supremacy.
Would the court rule the same if a Muslim coach had led prayers on the field? Will they ever see a “secular purpose” in the religious practices of people who are not Christian? And how will they support the rights of nonwhite non-Christian people if such rights are not “deeply rooted” in American history?
We must call these decisions what they are – a call to white Christian supremacy – and fight them as such.
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