Will Supreme Court Confirmation Keep Church/State Separate?

The drums are beating along the banks of the Potomac. Interest groups on the left and right are positioning themselves for the ugly Senate confirmation fight that will surely follow once President George W. Bush gets done choosing a nominee to fill the vacancy left by retiring Supreme Court Justice Sandra Day O'Connor. Who knows? Perhaps the Chief Justice will retire and give us a doubleheader.

It should be quite a spectacle, even a raucous circus, despite Bush having made conciliatory noises that he only wants to choose someone that will interpret the Constitution and not legislate from the bench.

The president even says he won't make the nominee's position on abortion a litmus test. But don't get all giddy just yet. This enticing language is simply coded message to his true-believers: since "abortion" is not in the Constitution, no right-minded judge would interpret the document to identify that right in the first place. Ergo: he will choose an anti-abortion nominee and rightwing ideologue.

But Bush, becoming more concerned now with legacy than during his administration's first-term macho strut, will at least try to select someone who will "seem" to be of the mainstream.

Appeals Court Judge Michael W. McConnell would be a perfect choice if one wanted a Trojan horse. McConnell is a bright, soft-spoken former academic. Well-liked by his liberal colleagues, he even has some unconventional views that might irk the far right.

But he is also someone who would take us a huge step backwards as far as church/state separation is concerned. He would bring back graduation prayers and creationism in the schools and push vouchers and more government involvement in religion.

McConnell claims the whole doctrine of separation is, historically-speaking, flawed. I will risk the wrath of fellow freethinkers and take the unpopular view that he is about half right.

Let's give the other side its due. Despite the intent of men like Thomas Jefferson and James Madison, separation of church and state was not a slam-dunk at the founding of our republic. Even after the passage of the First Amendment a few of the 13 independent states continued to tax citizens to support the dominant Protestant denomination. Many states had blasphemy laws; a few had blue laws prohibiting working and dancing on the Sabbath; some even prohibited Catholics and Jews (not to mention non-believers!) from holding office well into the nineteenth century.

And all these laws were perfectly constitutional! Like the rest of the Bill of Rights, the First Amendment had no legal bearing on the 13 newly-independent states, at least not initially. The states could do as they liked. Nonetheless, some, like Virginia and Pennsylvania, chose right from the very beginning to hew very closely to our present-day understanding of church/state separation.

Now, even most of those who oppose the doctrine of separation acknowledge that the generation that ratified the Constitution wanted the federal government out of the business of religion. From there the natural development of separation doctrine shifted to the states, whose politicians and populaces began to realize, over time, that religion and government do not mix. Most began to eliminate religiously-infused statutes from their law books. The High Court accelerated this trend by holding that the Fourteenth Amendment made the protections of the Bill of Rights -- including the Establishment Clause -- applicable to all levels of government. Not only is this "incorporation doctrine" accepted by most jurists, but it made sense to go this route because the nation was steadily becoming more religiously diverse in the nineteenth and twentieth centuries.

But McConnell and justices like Clarence Thomas have a point if you believe the Constitution doesn't grow.

The larger question is this: Is the above snapshot of our nation's distant past something we want to go back to? Perhaps the far right might want to, but I have a sneaking suspicion that even most conservatives would recoil at Justice Thomas's radical view that the Establishment Clause resists "incorporation" and that states are free to create state-sponsored churches should they choose to do so. I can see it now: Instead of red and blue states, we would have all sorts of colored states to recognize fundamentalist, Catholic and Mormon ascendancy in different regions of the country.

That is why all this talk about nominating someone who will interpret the Constitution and not legislate from the bench is particularly grating.

At first glance, original intent and strict constructivism arguments seem to be common sense approaches to deciphering the Constitution. The original intent approach says we should, when trying to understanding some provision, seek to discover the initial purpose(s) of the person(s) who drafted that provision. Sounds straightforward enough. Strict constructivism means that judges should construe the language of the Constitution to mean what the words say. Again, what's wrong with that?

The only problem with "originalism" is that it is often difficult to divine what the drafters intended. Or, even more problematic: since there were many drafters, there may be many intents. This allows an unscrupulous judge to choose the purpose that best aligns with his or her political agenda, all along claiming that he/she is neutral and simply applying the law.

So why not interpret this venerable document in the context of modern understanding, instead of the past, which favors conservative politics? In fact, it happens all the time. As far as I know all nine justices have no problem with the government providing lawyers to indigent defendants, even though that was not the original intent of the Sixth Amendment guarantee. Chief Justice Rehnquist's interpretation of the Equal Protection Clause to prohibit sex discrimination departs from the original purpose which was to provide legal equality for African-Americans. And Justice Scalia has defended flag burning as free speech, even though one wonders whether such a notion even entered the thoughts of the founders.

Which brings us to strict constructivism.

Strictly construing words is fine when we have such self-defining phrases as the requirement that the president must be at least 35 years old.

But what do we do with vague generalities like government shall make no law prohibiting the free exercise of religion? Does that mean that you should be able to mainline heroin or sacrifice your firstborn if that is part of your religion? Obviously, some reading between the lines has to take place here.

As a secularist I happen to take the unorthodox approach that the doctrine of separation of church and state was not fully-formed at the beginning, but naturally evolved with time from the seeds planted by our most prominent and thoughtful founders. In a largely Protestant nation, solicitude for Muslims and Wiccans was probably not an important consideration. But in a nation as religiously diverse as ours is today -- with several million unbelievers to boot -- strict separation is the best course of action, or else we're in for some rocky times ahead.

So don't be fooled when you hear these pious utterances from the far right about how a judge is supposed to do her job. The U.S Supreme Court is a legal institution. But it is also a political one -- always has been, always will be.

And while we're at it, we better stop listening to these cynical eighth-grade civic lessons that nominees should be judged on their qualifications alone -- not their political convictions. You can be sure that the right would not play by the same Marquis of Queensbury rules if they were in the same weakened condition as progressives are now.

About the author:
Tim Gordinier, Ph.D., is the director of public policy of the Institute for Humanist Studies. The Institute for Humanist Studies is a nonprofit advocacy organization, based in Albany, N.Y., that promotes the rights of the nonreligious (http://www.HumanistStudies.org). A registered lobbyist for humanism, Gordinier earned his doctorate in public law with a concentration on the religion clauses of the First Amendment. He is a board member of the New York Civil Liberties Union - Capital Region Chapter. He is the author of the online course "Religion and the Constitution", offered through the Institute's Continuum of Humanist Education (http://www.HumanistEducation.com). Gordinier's commentary appears regularly in the Institute's weekly e-zine, Humanist Network News (http://www.HumanistNetworkNews.org). To contact Gordinier, visit: http://humaniststudies.org/feedback.html