High Court puts next July 4th at risk

Last month, we celebrated the 248th birthday of “the Great Experiment” that is our republican democracy. We may not have reason to celebrate its 249th birthday next July 4th, however, because of a spate of decisions handed down by the Supreme Court of the United States, as presided over by Chief Justice John Roberts.

There are many examples showing how the Roberts court has endangered our republican democracy. These include the presidential immunity decision handed down on July 1 — a dangerously wrongheaded decision, as will be discussed further on.

Of great concern to us Jews is how this court has punched holes in what Thomas Jefferson referred to as the “wall of separation between church and state” that was erected by the First Amendment’s establishment clause. (See Jefferson’s 1802 letter to the Danbury Baptist Association.)

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The “wall of separation” was enshrined in the Constitution to ensure that this nation would forever remain neutral in matters of religion. The Roberts court, however, has repeatedly handed victories to the growing movement to Christianize America — victories too often hailed by Jewish groups that are unable to look beyond the immediate benefit to them to see how in the long term those victories will undermine the freedom of religion we so revere.

Make no mistake. Turning this country into a Christian nation, a nation in which we and other religious minorities (including certain Christian sects) are relegated to second-class status, is the end goal of at least two associate justices, Clarence Thomas and Samuel Alito. The two justices have admitted as much and they consistently vote that way, as when they agreed that a 40-foot cross that had been erected on public property was a “secular monument” in 2019’s American Legion v. American Humanist Association, or when they allowed government funds to benefit religious schools in 2020’s Espinoza v. Montana Department of Revenue, and 2022’s Carson v. Makin.

In the American Legion case, Thomas actually claimed that the First Amendment’s establishment clause in no way applies to state and local governments. As Thomas, joined in his concurring opinion by Associate Justice Neil Gorsuch, put it: “…the Establishment Clause does not prohibit States from favoring religion.”

Understand why that statement is so chilling: If a state establishes some Christian sect to be its official state religion, Thomas and Gorsuch believe that is that state’s right. They would rule in favor of it doing so.

When it comes to Establishment Clause issues involving the christianizing of America, these two men are essentially channeling the late Associate Justice Antonin Scalia, who was outspoken on this issue.

In 2005, for example, Scalia said that it was “demonstrably false” that the Establishment Clause was meant to protect religious minorities or nonbelievers. “Our national tradition has resolved that conflict in favor of the majority,” he said.

In other words, since there are more Christians in the United States than there are Jews or Muslims, for example, the Constitution favors and even promotes the Christian majority’s beliefs over all others.

Perhaps the most egregious christianizing America decision handed down by the Roberts court is 2022’s Kennedy v. Bremerton School District, which, by a 6-to-3 vote, ended what had been the standard test the court had used for more than 50 years to determine whether government actions violated the establishment clause. In 1971, the court, under Chief Justice Warren E. Burger, voted 8-to-0 to create that test in deciding the case of Lemon v. Kurtzman. The so-called “Lemon Test,” to which both that Court’s conservative and liberal justices agreed, said that government actions must have a secular purpose, cannot in any substantive way advance or inhibit religion, and must not involve government in matters of religion.

Both Thomas and Alito, again channeling Scalia, claim to be originalists. They claim to believe that the Constitution must be interpreted based on what the Founding Fathers originally intended when they created this nation. Where matters of religion are concerned, however, this claim is “demonstrably false,” to use Scalia’s phrase.

In determining what the Founders thought on virtually every constitutional issue, the first place to look is in the 85 essays contained in the Federalist Papers. Written by James Madison, Alexander Hamilton, and John Jay and published under the pseudonym Publius, these essays were central to convincing the public to ratify the Constitution.

In Federalist No. 10, Madison (the “Father of the Constitution”) discussed the dangers of factions — groups of citizens with interests contrary to the rights of others, which made them “much more disposed to vex and oppress each other than to cooperate for…the common good.” These factions, he wrote, could arise from various sources, including religion, and could disrupt social harmony and governance. He argued that a large republic, such as the one proposed by the Constitution, was the best way to control the effects of these factions.

The debates during the Constitutional Convention of 1787 further illuminate the Founders’ views on virtually every constitutional issue, including the separation of church and state. Delegates desperately wanted to avoid the very religious conflicts that had plagued Europe for centuries. They were determined that the nation they were creating would remain forever neutral in religious matters.

That is why, for example, Article VI of the Constitution banned religious tests for officeholders. In the words of South Carolina’s Charles Pinckney, “The legislature of a great empire ought not to raise any denomination of Christians above the rest [meaning all other religions], nor ought it to make the belief or practice of any system of religious faith a necessary qualification for public office.”

These ideas led to the First Amendment, which established that “wall of separation” Jefferson referred to in his 1802 letter.

Madison played a crucial role in drafting that amendment. In “Memorial and Remonstrance Against Religious Assessments,” a 1785 essay he wrote opposing a proposed tax to support Christian teachers in Virginia, he articulated the views that later influenced the Establishment Clause.

Every person’s religion, he wrote, should be based on their own beliefs and conscience. Everyone has the right to practice their religion as they see fit. “This right is in its nature an unalienable right,” he added, because a person’s beliefs are formed by what he or she thinks and feels, not by what others tell that person to think.

In a 1947 case, Everson v. Board of Education, the late Associate Justice Hugo Black summarized how the court historically had viewed the establishment clause. It “means at least this,” he declared: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

If the Roberts court majority, Thomas and Alito especially, truly believed in being faithful to the Founders’ intent, they never would have scrapped the Lemon Test and would have been more circumspect in their approach to all establishment clause challenges.

The same holds true for their concurrence in July 1st’s presidential immunity decision, which calls into question how sincere Thomas and Alito are when it comes both to their supposed faithfulness to originalism and to their desire that the United States adhere to biblical law, at least as they interpret it. That decision, in effect, created an imperial presidency (something that was anathema to the Founders, as Hamilton demonstrated in Federalist Papers No. 69). Biblical law abhors the notion of a ruler being above the law. Deuteronomy 17:18-20 — which is very much a part of the Christian Bible supposedly so esteemed by Thomas and Alito — is very clear about this. As the late 19th century biblical commentator Rabbi Samson Raphael Hirsch explained those verses:

“As soon as he has ascended the throne, [the king’s] first act must be to make a copy of the Torah by hand. He thereby confirms…that he is not above the law, but rather that [the law] serves as the constant guideline of his entire life, the implementation of which among the people forms the sum of his royal task, and that he must lead the people in an exemplary manner as the ‘first son of the law’ in conscientious adherence to the law and in self-sacrificing devotion to the tasks set by the law.”

In its attempts to christianize America and establish an imperial presidency, among other ominous rulings, the current Supreme Court is actively engaged in reforming this nation in a way that wipes out any reason to celebrate future July 4ths. The christianizers and the anti-democratic extremists on the right will turn out in force on November 5th to keep those noxious reforms coming.

If we are to prove that James Madison was correct, that a large republic is the best way to defend against the tyranny of factionalism, we must forego our normal party affiliations that day and vote for a Democratic president and a Democratic-led Congress. As things now stand, only they have the power to right many of the wrongs perpetrated by the Roberts court.

Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.