We have just had three “Originalist” Supreme Court opinions released within the space of a week, all of which are of great importance in their own right, and taken together, mark a seismic shift towards a return to the Constitution of our Founders that I never expected to see in my lifetime. Seemingly the least important of these three is Kennedy v. Bremerton School Dist., which establishes originalism (the intent and understanding of the Founders) as the test for Supreme Court religious jurisprudence. It may turn out to be the most consequential of them all.
In Kennedy a high school football coach and devout Christian, Mr. Kennedy, was fired for publicly praying before and after his games. He brought suit, alleging that the actions of the school district violated three distinct clauses of the First Amendment:
Congress shall make no law respecting an establishment of religion [Establishment Clause], or prohibiting the free exercise thereof [Free Exercise Clause]; or abridging the freedom of speech . . .
The District Court and the 9th Circuit Court of Appeals upheld the firing. The tests these courts applied to reach their decisions had been crafted by progressive Justices over a period of decades. The series of tests for Establishment Clause challenges and Free Exercise Clause challenges had nothing to do with the intent of the men who had passed the First Amendment in 1791. These modern tests were, in practice, weighted towards driving religion out of the public square.
The majority in Kennedy ultimately did away with such tests, directing future courts to look to the Founders:
. . . [T]he Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “‘perceptions’” or “‘discomfort.’” . . . An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. . . . Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” . . .
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’” Town of Greece, 572 U. S., at 576; see also American Legion, 588 U. S., at ___ (plurality opinion) (slip op., at 25). “‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”
Not surprisingly, the three progressives on the Court — Sotomayor, Breyer, and Kagan — vociferously dissented. Sotomayor issued a plaintive wail, calling for a return to a complete “separation of church and state.” To that end, she wants to keep “the cumulative criteria developed by the Court over many years” of experience “draw[ing] lines” as to when government engagement with religion violated the Establishment Clause.” But of course.
Significance of Kennedy
Kennedy’s call for originalist jurisprudence in the realm of religion is seismic. At a stroke, it will significantly counter the war progressives have been waging on religion in America for almost a century. It is a dagger in the heart of Systemic Progressivism (see below) and it will return the relationship between religion and government back to the time of the Founding, centuries before Marxism and socialism came to our shore and, under the progressive banner, undertook to drive the Judaeo-Christian religions completely out of the public square. It would be impossible, I think, to overestimate the importance of such a return of the Judaeo-Christian religions to our nation’s public square as it was at our Founding. As John Adams wrote in 1798,
Because we have no government, armed with power, capable of contending with human passions, unbridled by morality and religion. Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
The great canard of our era is that America — the least racist country on earth (if you ignore the reverse racism being manufactured by progressives) and a country with no laws on its books that perpetuate, allow, or require racism — nonetheless suffers from Systemic Racism. Actually, the only cancer in this nation is Systemic Progressivism. It is the progressive political ideology incrementally foisted upon America over the past century by the courts and by regulators, neither of which has the slightest constitutional right to do so.
As to the courts, the only ways to amend the Constitution are set forth in Article V, both of which involve the people acting through their legislators. Neither of those methods involves judges in any way, let alone five unelected judges sitting as a politburo, amending the Constitution unlawfully by announcing their preferred policies as new constitutional law wholly irrespective of what the Founders intended (something often referred to as “judicial activism” or as the “living Constitution”). Unfortunately, our Founders, despite being warned in 1787, did not craft effective checks and balances upon the Court in Article III, letting progressives in the 20th century turn the Courts into the most dangerous branch of government.
As to the entire regulatory bureaucracy that has grown over the past century, it regularly passes “regulations” with the force of law, and quite often does so to make fundamental changes to our nation that could not pass through Congress. It is now a more important source of law than Congress. And yet Art. I, Sec. 1 of the Constitution vests “all legislative powers” solely “in Congress.” What has happened is that the regulatory bureaucracy is a progressive invention a century old. The progressive Supreme Court has allowed it to operate outside of our Constitution, to operate outside of the direct ballot box, and to destroy the Founders’ carefully crafted system of Constitutional checks and balances. It is every bit as toxic as the progressives on the Supreme Court (though I will address the regulators in a future post).
All of the above are the tools of progressives that they have used to drive the cancer of Systemic Progressivism into the machinery of our nation Nowhere has this been more important or more effective than the progressive war on religion. Until today with the Kennedy decision, the Supreme Court has been incrementally driving religion out of the public square for the past century.
At the Founding, a pluralistic, generic Christianity was the beating heart of our nation and was very much supported by our nascent government. As Judge James Buckley said in a 2006 speech (well worth your time to read the whole thing):
I think it useful . . . to note that the idea that religion is a purely private matter is of recent vintage. For most of our history, the First Amendment’s provision prohibiting the “establishment of religion” was understood to do no more than forbid the federal government’s preferential treatment of a particular faith. But while the First Amendment’s purpose was to protect religion and the freedom of conscience from governmental interference, as Thomas Cooley noted in his 1871 treatise on Constitutional Limitations, the Framers considered it entirely appropriate for government “to foster religious worship and religious instruction, as conservators of the public morals and values, if not indispensable, assistants to the preservation of the public order.” As that perceptive observer of the American scene, Alexis de Tocqueville, put it, “while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.
But then, the Marxism and socialism that began in France in 1791 came to the United States in the 20th century under the banner of progressivism. As I wrote almost a decade ago:
When socialism was born in the crucible of the French Revolution, its founders immediately began a brutal war on the Catholic Church and its clergy with the goal of eliminating the Judeo-Christian religion from their country. Denis Diderot, a hero of the Revolution, proposed to his fellow revolutionaries that they strangle the last priest with the “guts of the last king.” The left’s war on the Judeo-Christian religions had begun, and it has never ended since.
The Judeo-Christian religions, with their emphasis on the sanctity of individual life, respect for family and sexual mores, must be removed for the left to succeed in remaking Western civilization under the auspices of an omnipotent government — a government free to use its police powers to create a new order of ostensible social and economic equality. Simply put, the socialist left needs to eliminate the Judeo-Christian religions so that they can replace God with government as the final source of morality, laws and, indeed, approved thought.
In whatever nation they take root and at whatever historical period, the left’s playbook for attacking religion has always been the same, at least in those places where they could not simply ban the Judeo-Christian religions. Step one is to marginalize religion in society. Step two is to intercede in between the family and the child, to take over children’s education and impart left wing values. The third and final step is to use the police powers of the state to establish the primacy over religious conscience, in essence delegitimizing religious values and putting the final nail in its coffin.
We are seeing all of that play out in spades today, particularly with the sexualization of children. Mrs. BWR wrote a post for American Thinker in 2010, Sex and State Power, describing exactly how the left used sex to intercede into the family and marginalize religion. It was prophetic. Today, religion is banned from the public square and schools are waging a full-scale ideological war on our children to divide them from religion and their own parents.
How the left got us to this point was through incremental Supreme Court decisions that turned our nation from Christian to progressive and secular. As I’ve previously written:
In the mid-20th century, the American socialist left used the ACLU – an organization specifically formed to further socialism and communism – to bring a series of Court cases designed to remove religion from the public square and elevate the ethos articulated by Margaret Sanger. The socialists sought judicial activism – and by and large, the Courts complied. Though the Constitution says nothing about abortion or contraception, thus leaving the matters to the states and majority rule by default, the left asked the Court to enshrine abortion and contraception as federal Constitutional rights. Between 1965 (Griswold) and 1972 (Einstadt), the Supreme Court found a “right to privacy” in the “penumbras” of the Constitution such that access to contraception was made a Constitutional right. And then in 1973 (Roe), the Supreme Court, found the same for abortion.
As to religion, it has been under sustained attack by the socialist left through our Courts since 1947 (Everson). wherein the Supreme Court read the 1st Amendment clause prohibiting the federal government from establishing a national church to mean “a wall of separation between Church and State.” Where for almost two centuries there had been fairly substantial involvement of a generic Christianity in the public square, the Supreme Court, in a series of subsequent cases, changed that completely. In 1963 (Engle), the Court ruled prayer in school unconstitutional. In 1989 (Allegheny County), the Court ruled that a creche, prominently displayed in a Courthouse at Christmas, was unconstitutional. In 2005 (McCreary County), the Court held unconstitutional displays of the Ten Commandments in several Kentucky courthouses. But perhaps the biggest victory the left gained through the Court’s was the 2002 decision in Lawrence v. Summers, a case seeking to hold Texas’s laws against sodomy unconstitutional. Implicit in the holding of that case was a finding that Christian morality, standing alone, is no longer a “rational basis” to uphold our laws. :
Of course, in the wake of Lawrence came the utterly obscene, activist decision in Obergefell v. Hodges, finding that, hiding deep within the 14th Amendment for over 100 years without ever being noticed was a constitutional right to homosexual marriage. That decision has set in motion the final assault on religion in this country. Or it did, until this week.
We live today in a nation that is much different from the one we inhabited last week. It is a nation that is moving to recover its soul and, with it, its potential.