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Home » Archives » News Archives » 2005 News Archive » The Post-Rehnquist Supreme Court

The Post-Rehnquist Supreme Court

Pacific Union Conference of Seventh-day Adventists
Department of Public Affairs and Religious Liberty

September 4, 2005


Chief Justice William H.Rehnquist Died Saturday Night of Thyroid Cancer
Two Vacancies on Supreme Court Pose Risk to Religious Freedom
Summary:  As Chief Justice, William Rehnquist moderated his early attacks on the wall of separation between church and state. If replaced by a staunch conservative in the mode of Justice Antonin Scalia, as President Bush and others have publicly advocated, the Supreme Court could experience a dramatic shift which would erode the constitutional protection of religious freedom.
Meanwhile, we offer our prayers to the Rehnquist family at this sad time, as well as praying for our President and Senate as they face the challenge of filling two positions on the Supreme Court.
Analysis: In 1985, before becoming Chief Justice, then Justice William H.. Rehnquist analyzed the history of the First Amendment’s Establishment Clause in the case of Wallace v. Jaffree, a case involving an Alabama statute that added prayer to the permissible activities during a public school moment of silence. In his dissenting opinion supporting the statutory encouragement of prayer, Rehnquist penned his famous attack on the wall of separation between church and state:
“The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
Rehnquist argued that the original intent of the framers was that the Establishment Clause:  “forbade establishment of a national religion, and forbade preference among religious sects or denominations.”
Religious conservatives, Protestant and Catholic alike, have seized on statements like these to support their pursuit of tax dollars for parochial schools and other ministries, and to use the arm of the state to promote religion, such as the public display of the Ten Commandments.
Wallace v. Jaffree is especially significant on account of Justice Sandra Day O’Connor’s concurring opinion, advancing her views that government action should not endorse or disparage religion. O’Connor had a profound influence on the Supreme Court’s religion clause cases, as well as a moderating influence on Rehnquist.
Rehnquist’s migration toward a more moderate view of separation of church and state is evident in his last religion clause decision, from June, 2005, upholding a Ten Commandments’ monument at the State Capitol in Austin, Texas.
“Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history. …The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation's heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage…”
Where Rehnquist had once attacked the wall of separation of church and state in Wallace, in the Texas Ten Commandments Case (Van Orden v. Perry), he acknowledges the Court’s “responsibility to maintain a division between church and state…” [What few publicly acknowledge is that the separation of church and state is a Protestant principle closely linked to the doctrine of justification by faith, a core Reformation teaching. The principle that neither church nor state could interfere with religion, or with the relationship between a soul and its Creator, derives from the idea that each person must respond to Christ’s love voluntarily and willingly, if at all.]
Our colleague, Greg Hamilton, an expert on Justice Sandra Day O’Connor, attributes Rehnquist’s moderation to O’Connor’s influence. The office of Chief Justice itself is a moderating influence, since by definition, the Chief attempts to build majorities in order to resolve cases. Yet Rehnquist declined to support the more radical views of Justices Scalia and Thomas on some occasions.
A prime example of where Rehnquist parted company with Scalia and Thomas is in Davey v. Locke. In this case, a college student was eligible for a state scholarship, except that he could not use it to study for the ministry. Washington State’s constitution prohibits use of tax funding for religion, so its state scholarships excludes ministerial training. The majority, including Rehnquist, upheld Washington’s right to interpret its state constitution to prohibit funding of ministerial training.
In dissent, Justice Scalia argued that the Free Exercise clause principle of neutrality required the State to provide the scholarship to all, without regard for the religious course of study. This would have been the first time a court held that a person has a constitutional right to obtain state aid for a religious function. Scalia’s approach would have created a large loophole in the Establishment Clause that may have compelled the government to fund religious education.
Under Scalia’s reasoning, Catholic schools would argue that the state could not choose to fund only secular schools, but must include all schools, including religious schools. A wide range of religious activities would similarly claim entitlement to public funds. This would turn the religion clauses upside down. Instead of protecting religious freedom from government interference, the clauses would require government “interference” in religion. Such public funds, in our system, require accountability, which means regulation and oversight. In place of religious freedom, Scalia’s approach to the Establishment Clause would seriously undermine the independence of religious organizations.
To his credit, Rehnquist rejected this wholesale revision of our system of church-state relationships. Sadly, neither the Bush administration nor its supporters among religious conservatives understand what’s at stake for religious freedom when they publicly contend that more justices like Scalia are needed. [The alternative – that they really do understand – is frightening]] Although conservatives like Scalia are viewed as a bulwark against immoral anarchy, the church has sadly neglected its own role in building up public morals. It is pursuing a misguided political course after generations of undermining respect for the Law of God by teaching that the law was nailed to the cross, and did not require obedience.
Scalia’s approach is essentially majoritarian. This was evidenced in the infamous peyote case, Employment Division v. Smith, when he demolished the Free Exercise Clause, and insisted that minority religious rights could be protected, if at all, by the legislature, not by the Constitution. He called the protection of minority rights a “luxury” that “a well ordered society cannot afford.” This approach was also evident in an Establishment Clause context in his dissent to the recent Kentucky Ten Commandments Case. The majority struck down a court house display of the Ten Commandments, because the facts of the case made it plain that the Commandments were being displayed as an endorsement of religion, and for a religious purpose. Historically, in analyzing Establishment Clause challenges, the Supreme Court has required government to act for primarily secular purposes, and to accomplish primarily secular objectives. Government has no legitimate authority to act for primarily religious reasons, or to advance religious objectives. Justice O’Connor has added a new dimension to this analysis in her understanding that government must neither endorse nor disparage religion. In dissent, Scalia revealed his majoritarian approach:

“The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7 percent of all believers—are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.”

Such majoritarianism can be a two-edged sword. The Fourth Circuit U.S. Court of Appeals, for example, has been called on to consider prayer before public meetings, like city councils. It has held, first, that such prayer cannot invoke the name of Jesus Christ, and also, that a Wiccan has no right to offer prayer. Its approach to majoritarian religion is to water it down to bear essentials, depriving such religion of any real content or meaning.
If conservative Supreme Court appointees really do side with Scalia, then they can be expected to favor a majoritarian approach instead of protecting minority rights. The majoritarian approach gives government power to advance or restrict religion in direct contradiction of the original intent of the framers. Although such conservatives often invoke “original intent” and claim that their views reflect such original intent, in fact they reject and revise the original meaning of the First Amendment. [See: Original Intent and the Separation of Church and State: Debunking the Myth, August 16, 2005,]

Those who care about religious freedom have very real concerns about justices like Antonin Scalia, whose majoritarian approach has limited freedom of religious practice for religious minorities. We need justices who understand the fundamental goal of preserving religious freedom, and apply legal principles toward this goal.


These religious liberty newsflashes and legislative e.lerts are published by the Pacific Union Conference of Seventh-day Adventists, Department of Public Affairs & Religious Liberty.
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