Religious supremacy, it is (again)
Neil Gorsuch got his day on stage. He chose make-believe, followed by a magic trick.
After Monday’s rulings, four Supreme Court cases remain this term, including two big ones:
West Virginia v. EPA and Biden v. Texas. West Virginia is about regulation of greenhouse gases under the Clean Air Act, and the Texas case is about the Biden administration’s decision to end the “Remain in Mexico” Trump administration policy. The decisions will have direct effects on the environment and immigration, but they also could change government — altering the way presidents and their administrations interact with states, Congress, courts, and the policies of past presidents.
There also remains a criminal law case involving state prosecutions arising from crimes committed on tribal lands by people who are not members of the tribe (Oklahoma v. Castro-Huerta) and a case involving war powers and state sovereignty (Torres v. Texas Department of Public Safety).
More decisions are expected Wednesday, but the court also hasn’t said it will be the last day for decisions — so don’t expect all four on Wednesday.
WELCOME TO THE STAGE, NEIL GORSUCH: On Monday, Justice Neil Gorsuch changed America.
It’s not going to get the attention of the other cases that also changed America, but, nonetheless, he did.
On Monday, Gorsuch ignored the facts of a case involving a public-school football coach, Joseph Kennedy, who prayed in midfield after high school football games. (To give just one of many examples: Kennedy regularly led his students in prayer over several years, but Gorsuch just pays attention to the last three incidents, where that didn’t happen.) Gorsuch created an imagined set of facts to make Kennedy’s case more sympathetic and then, using those make-believe facts, changed the way religion and government are going to interact in this country.
After spinning a story of the case that he wanted to decide, Gorsuch — joined by all five of his conservative colleagues (yes, including Chief Justice John Roberts, who wrote last week’s religious supremacy decision) — did a magic trick: fundamentally changing our understanding of the First Amendment’s religion clauses over the course of a few pages of his opinion by claiming that the court had already done so.
Starting on page 21 of the opinion in Kennedy v. Bremerton School District, Gorsuch discussed how the Bremerton School District and the US Court of Appeals for the 9th Circuit used the Lemon test in the case.
In 1971 (as Roe v. Wade was making its way to the justices), the Supreme Court decided the case of Lemon v. Kurtzman, setting forth a test for evaluating when government action violates the Establishment Clause. The test examined both the purpose and effect of government policies alleged to violate the Establishment Clause, then examined whether the policy created “excessive government entanglement” with religion. While the court has made clear over the time since that the test’s effort to address all Establishment Clause cases wasn’t going to work, and while the test had clearly grown out of favor with a increasingly tilted toward the Free Exercise Clause, it had never been overturned.
On Monday, Gorsuch (again, along with all of the other Republican appointees) announced that the Lemon test was gone — by saying the court “long ago abandoned Lemon.” Then, on the next page he went even further, declaring that the court had already replaced the Lemon test with — big surprise, originalism! — “reference to historical practices and understandings.”
Here it is, such as it is:
!["What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion (plurality opinion); see also Town of Greece. The Court has explained that these tests “invited chaos” in lower courts...and created a “minefield” for legislators. Pinette (plurality opinion). This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto.” Good News Club. An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Mergens (plurality opinion). 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.”"](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fbucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com%2Fpublic%2Fimages%2Fa14261d8-44ae-4931-a5e9-747b5b979a69_1140x1192.png "\"What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion (plurality opinion); see also Town of Greece. The Court has explained that these tests “invited chaos” in lower courts...and created a “minefield” for legislators. Pinette (plurality opinion). This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto.” Good News Club. An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Mergens (plurality opinion). 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.”\"")
!["Perry, 545 U. S. 677, 699 (2005) (BREYER, J., concurring in judgment). In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test. See Shurtleff, 596 U. S., at ___–___ (slip op., at 1–2); id., at ___ (ALITO, J., concurring in judgment) (slip op., at 1); id., at ___, ___–___ (opinion of GORSUCH, J.) (slip op., at 1, 4–5).4 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be in- terpreted by “‘reference to historical practices and under- standings.’ ” 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 impermissi- ble” has to “ ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’” Town of Greece,"](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fbucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com%2Fpublic%2Fimages%2F56b90c02-0d35-4f22-84a1-7e1c40596236_1120x794.png "\"Perry, 545 U. S. 677, 699 (2005) (BREYER, J., concurring in judgment). In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test. See Shurtleff, 596 U. S., at ___–___ (slip op., at 1–2); id., at ___ (ALITO, J., concurring in judgment) (slip op., at 1); id., at ___, ___–___ (opinion of GORSUCH, J.) (slip op., at 1, 4–5).4 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be in- terpreted by “‘reference to historical practices and under- standings.’ ” 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 impermissi- ble” has to “ ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’” Town of Greece,\"")
In the course of four pages Gorsuch (1) overturned a 51-year-old precedent, (2) announced a new originalist test to replace it, and (3) refused to acknowledge that he and today’s court was taking either of those steps.
“THE COURT PROFESSES NOTHING HAS CHANGED”: Justice Sonia Sotomayor explained Gorsuch’s multi-step sleight-of-hand in her dissenting opinion, in which she was joined by Justices Stephen Breyer and Elena Kagan.
After explaining that Gorsuch “misconstrues the facts” of the case, she then addressed the overturning of precedent, since Gorsuch refused to do so.
!["Today’s decision goes beyond merely misreading the rec- ord. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent prec- edents that it deems “offshoot[s]” of that decision. Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and re- places the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious ex- ercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activi- ties. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent."](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fbucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com%2Fpublic%2Fimages%2Fa57167b6-b483-4db2-ab51-54acec81deae_1106x808.png "\"Today’s decision goes beyond merely misreading the rec- ord. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent prec- edents that it deems “offshoot[s]” of that decision. Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and re- places the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious ex- ercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activi- ties. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.\"")
She later expanded on how Gorsuch is using the same act to bring in his new originalist test.
In addition to correcting the facts of the case and addressing the stealth overturning of precedent, Sotomayor also explained at length how Gorsuch misused or misstated many of the cited cases in his opinion to justify this new test that minimizes the role of the Establishment Clause in America. She also explained how the majority opinion minimizes the dangers of coercion that are central to the Establishment Clause and so glaringly apparent in Kennedy’s case.
WHERE ARE WE: Last week, Roberts wrote a majority opinion that makes it easier to give public money to religious schools. On Monday, Gorsuch wrote a majority opinion that makes it astoundingly easier not just to bring religion into public schools — but also to bring religion into all of government.
In 1971, announcing the decision in the Lemon case, Chief Justice Warren Burger wrote for the court:
“Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.”
On Monday, Gorsuch erased the lines that have served our country for more than 50 years.
While Gorsuch insisted in his opinion that there remain other lines, the “historical practices and understandings” test would appear to strongly support the greater religious supremacy project of the conservative justices. And, as Sotomayor put it, the test lacks “any meaningful explanation” at this time, so, it will be what the majority wants it to be — goals made pretty clear over the past two weeks alone.