THE SUPREME COURT: HIGHEST COURT IN THE LAND OR A CONCLAVE OF BISHOPS IN BLACK ROBES

THE SUPREME COURT: HIGHEST COURT IN THE LAND OR A CONCLAVE OF BISHOPS IN BLACK ROBES

Ah, the Supreme Court. The highest court in the land, the final arbiter of justice, the...conclave of bishops in black robes? That's right, folks. The Supreme Court may be the ultimate authority on legal matters, but it's also a group of people who wear some seriously fancy dress.

But let's not get distracted by the fashion choices of our esteemed justices. There's a more pressing issue at hand: White Christian nationalism. This delightful ideology believes that America was founded as a Christian nation by white Christians (surprise!) and that its laws and institutions are based on Protestant Christianity. It also believes that America is divinely favored and has a mission to spread religion, freedom, and civilization. And if you're not white, Christian, or American-born? Well, you're just a threat to their precious values and identity.

Now, you might be thinking, "Hey, isn't there something in the Constitution about separation of church and state?" And you'd be right! The First Amendment specifically prohibits the government from establishing a state religion or restricting the free exercise of religion. But who needs pesky things like constitutional rights when you've got White Christian nationalism on your side?

And speaking of the Supreme Court, they've been making some interesting decisions lately. For example, they've ruled that public money can be used for religious schools, striking down programs in Montana and Maine that excluded such schools from scholarships and tuition aid, respectively. They've also allowed a Missouri church to receive grants for playground resurfacing. Because nothing says "separation of church and state" like using taxpayer dollars to fix up a church playground.

But fear not, dear readers! The Lemon test is here to save the day. This handy little test is used to determine whether a government action violates the Establishment Clause of the First Amendment. You know, that pesky little clause that prohibits the government from establishing a state religion or favoring one religion over another. The Lemon test was named after a 1971 Supreme Court case where the court struck down a state program that provided financial assistance to religious schools. So if you ever find yourself in need of a quick constitutional check-up, just ask yourself: Does this violate the Lemon test? If the answer is yes, then congratulations! You've just won yourself a one-way ticket to the Supreme Court.

Of course, all of this talk about White Christian nationalism and separation of church and state is just a distraction from the real issue at hand: judicial fashion. You see, there are two schools of thought when it comes to judicial decisions: judicial activism and judicial restraint. Judicial activism is all about making bold decisions that push boundaries and challenge the status quo. Judicial restraint, on the other hand, is all about playing it safe and sticking to established precedent.

But forget all that nonsense. What we really want to know is: Who wore it better? Ruth Bader Ginsburg's iconic jabot or Sonia Sotomayor's chic black robe with gold trim? And let's not forget about Clarence Thomas's snazzy bowtie or Elena Kagan's bold statement glasses. These are the real issues that keep us up at night.

In conclusion, the Supreme Court may be the highest court in the land, but it's also a group of people who wear some seriously fancy dress. And while they may occasionally make some questionable decisions (looking at you, White Christian nationalism), we can always rely on the Lemon test to keep us in check. But most importantly, let's never forget the real issue at hand: judicial fashion. Because if we can't trust our justices to look good while upholding justice, then what can we trust them for?

THE DEFT DIVE

- **White Christian nationalism** is an ideology that believes America was founded as a Christian nation by white Christians and that its laws and institutions are based on Protestant Christianity. It also claims that America is divinely favored and has a mission to spread religion, freedom, and civilization. It sees non-whites, non-Christians, and immigrants as threats to its values and identity¹²³⁴.

- **Separation of church and state** is a concept that defines the political distance between religious organizations and the state. It means that the government should not favor or interfere with any religion, and that religious groups should not control or influence the government. It is based on the First Amendment of the U.S. Constitution, which prohibits the establishment of a state religion or the restriction of free exercise of religion⁵⁶⁷.

- **The Supreme Court** has recently issued several rulings that favored religious freedom and allowed public money to be used for religious schools. For example, it struck down a Montana program that excluded religious schools from scholarships⁸, a Maine program that barred tuition aid for schools that offer religious instruction⁹, and a Missouri program that denied grants for playground resurfacing to a church[^10^]. These decisions have been controversial and have raised questions about the future of church-state separation and public education¹¹.

 Bing, 6/25/2023

(1) Understanding White Christian Nationalism | Institution for Social and .... https://isps.yale.edu/news/blog/2022/10/understanding-white-christian-nationalism.

(2) How White Christian Nationalists Seek to Transform America. https://www.newyorker.com/podcast/politics-and-more/how-white-christian-nationalists-seek-to-transform-america.

(3) White Christian Nationalism: The Deep Story Behind the Capitol Insurrection. https://berkleycenter.georgetown.edu/responses/white-christian-nationalism-the-deep-story-behind-the-capitol-insurrection.

(4) Yale sociologist Phil Gorski on the threat of white Christian nationalism. https://news.yale.edu/2022/03/15/yale-sociologist-phil-gorski-threat-white-christian-nationalism.

(5) Separation of church and state - Wikipedia. https://en.wikipedia.org/wiki/Separation_of_church_and_state.

(6) Separation of Church and State - LII / Legal Information Institute. https://www.law.cornell.edu/wex/separation_of_church_and_state.

(7) Christianity - Separation of Church and State, Enlightenment Ideals .... https://www.britannica.com/topic/Christianity/Separation-of-church-and-state.

(8) How the Supreme Court inspired nation's first religious charter school. https://www.usatoday.com/story/news/politics/2023/06/24/supreme-court-religious-charter-school-isidore/70352174007/.

(9) How Supreme Court ruling lays groundwork for religious charter schools .... https://www.washingtonpost.com/education/2022/06/21/supreme-court-ruling-religious-charter-schools/.

(10) Could religious charter schools upend American education?. https://www.chalkbeat.org/2023/6/6/23751623/religious-charter-schools-private-oklahoma-explainer-supreme-court.

(11) Supreme Court may allow more public funds for church schools - Los .... https://www.latimes.com/politics/story/2021-12-07/supreme-court-poised-to-further-open-the-door-for-taxpayer-funding-of-religious-schools.

The Supreme Court justices have different views on the separation of church and state, and they often split along ideological lines in cases involving the Establishment Clause and the Free Exercise Clause. Here is a brief summary of where each justice stands on this issue, based on their previous rulings and public statements:

• - **Chief Justice John Roberts** has generally sided with the conservative wing of the court in favoring religious rights over government neutrality. He has voted to uphold public funding for religious schools, religious exemptions from anti-discrimination laws, and religious displays on public property. He has also criticized the Lemon test as unworkable and inconsistent¹²³.
• - **Justice Clarence Thomas** has taken an originalist approach to the Establishment Clause, arguing that it only applies to the federal government and not to the states. He has also advocated for a broad interpretation of the Free Exercise Clause, supporting religious exemptions from generally applicable laws. He has called for the Lemon test to be abandoned and replaced with a coercion test that would only invalidate government actions that directly compel religious observance⁴  .
• - **Justice Sonia Sotomayor** has been a vocal champion of church-state separation and a critic of government favoritism or entanglement with religion. She has voted to strike down public funding for religious schools, religious exemptions from anti-discrimination laws, and religious displays on public property. She has also defended the Lemon test and its variations, and she has warned that the court's conservative majority is eroding the establishment clause  .
• - **Justice Elena Kagan** has been more flexible and nuanced in her views on church-state separation, sometimes joining the liberals and sometimes the conservatives. She has emphasized the importance of balancing the interests of both the establishment clause and the free exercise clause, and she has rejected extreme positions on either side. She has voted to uphold some forms of public funding for religious schools, but also to strike down some forms of religious displays on public property  .
• - **Justice Neil Gorsuch** has been a strong supporter of religious rights and a critic of government interference or discrimination against religion. He has voted to uphold public funding for religious schools, religious exemptions from anti-discrimination laws, and religious displays on public property. He has also expressed disdain for the Lemon test and its variations, and he has advocated for a more robust protection of free exercise rights  .
• - **Justice Brett Kavanaugh** has been a consistent ally of the conservative wing of the court in favoring religious rights over government neutrality. He has voted to uphold public funding for religious schools, religious exemptions from anti-discrimination laws, and religious displays on public property. He has also criticized the Lemon test as confusing and unhelpful, and he has argued for a more historical and inclusive approach to the establishment clause  .
• - **Justice Amy Coney Barrett** has been a recent addition to the court, but she has already shown a tendency to side with the conservative wing in favoring religious rights over government neutrality. She has voted to uphold public funding for religious schools, religious exemptions from anti-discrimination laws, and religious displays on public property. She has also expressed doubts about the Lemon test and its variations, and she has suggested that the court should focus more on coercion than endorsement in establishment clause cases  .

 Bing, 6/25/2023

(1) U.S. Supreme Court takes aim at separation of church and state. https://www.reuters.com/legal/government/us-supreme-court-takes-aim-separation-church-state-2022-06-28/.

(2) Alarm as US supreme court takes a hatchet to church-state separation .... https://www.theguardian.com/law/2022/jul/02/us-supreme-court-religion-church-state-separation.

(3) The Supreme Court Benches the Separation of Church and State. https://www.aclu.org/news/religious-liberty/the-supreme-court-benches-the-separation-of-church-and-state.

(4) Supreme Court disregards 'separation of church and state' in football .... https://www.foxnews.com/politics/supreme-court-disregards-separation-church-state-football-coach-prayer-case-sotomayor.

Ideology is the set of beliefs, values, and preferences that influence how a person views the world and evaluates political issues. Ideology can play a role in Supreme Court decisions in several ways:

• - Ideology can affect how justices interpret the Constitution and apply legal principles to specific cases. For example, conservative justices may favor a narrow or originalist reading of the Constitution, while liberal justices may favor a broad or living reading of the Constitution¹².
• - Ideology can affect how justices weigh the interests and rights of different groups and individuals in society. For example, conservative justices may be more sympathetic to religious liberty claims, while liberal justices may be more sympathetic to civil rights claims³⁴.
• - Ideology can affect how justices align themselves with the political branches of government and the public opinion. For example, conservative justices may be more deferential to the executive branch and the states, while liberal justices may be more deferential to the legislative branch and the federal government .

Ideology is not the only factor that influences Supreme Court decisions. Other factors may include legal precedents, judicial doctrines, institutional norms, personal experiences, collegiality, and strategic considerations. However, ideology is often a significant and visible factor that shapes the outcomes and reasoning of many Supreme Court cases.

Bing, 6/25/2023

(1) Ideology in the Supreme Court | Princeton University Press. https://press.princeton.edu/books/hardcover/9780691175522/ideology-in-the-supreme-court.

(2) Analyzing ideological bias on the Supreme Court - The Stanford Daily. https://stanforddaily.com/2021/05/24/analyzing-ideological-bias-on-the-supreme-court/.

(3) Justices by Ideology | Visual First Amendment. http://visualfa.org/statistics/justices-by-ideology/.

(4) Ideology and Religious Bias in Supreme Court Decisions. https://www.rhmiller.com/ideology-and-religious-bias-in-supreme-court-decisions/.

Judicial activism and judicial restraint are two terms that describe the philosophy and motivation behind some judicial decisions. They are often used to criticize or praise judges for their rulings, especially on controversial issues.

• - **Judicial activism** is an approach in which judges interpret the law in a way that advances social and political goals, even if those goals are not explicitly stated in the law. Judicial activists may use their personal views, moral values, or constitutional principles to invalidate legislative or executive actions that they deem unjust or unconstitutional. Judicial activists may also create new rights or obligations that are not clearly derived from the law¹²³.
• - **Judicial restraint** is an approach in which judges limit their interpretation of the law to the specific language of the law itself, and avoid making decisions that have broad policy implications. Judicial restraintists may defer to the views of other branches of government or previous courts, unless there is a clear violation of the law. Judicial restraintists may also refrain from creating new rights or obligations that are not clearly supported by the law⁴  .

Judicial activism and judicial restraint are not mutually exclusive, and judges may adopt different approaches depending on the case and the context. Moreover, these terms are not always consistent with the political ideology of the judges or the outcomes of their decisions. Both liberal and conservative judges can be activist or restraintist in different situations. However, these terms are often used to imply a normative judgment about whether a judge is exceeding or fulfilling his or her proper role in the judicial system.

Bing, 6/25/2023

(1) Judicial activism and judicial restraint (video) | Khan Academy. https://www.khanacademy.org/humanities/us-government-and-civics/us-gov-interactions-among-branches/us-gov-checks-on-the-judicial-branch/v/judicial-activism-vs-judicial-restraint.

(2) Judicial activism | Definition, Types, Examples, & Facts. https://www.britannica.com/topic/judicial-activism.

(3) Judicial Activism and Judicial Restraint - Legal Services India. https://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html.

(4) Judicial Activism vs Judicial Restraint: Difference and Comparison. https://askanydifference.com/difference-between-judicial-activism-and-judicial-restraint/.

The **Lemon test** is a test that courts use to determine whether a government action violates the Establishment Clause of the First Amendment, which prohibits the government from establishing a state religion or favoring one religion over another. The test was named after the case of Lemon v. Kurtzman (1971), where the Supreme Court struck down a state program that provided financial assistance to religious schools¹.

The test has three parts:

• - The government action must have a **secular purpose**, meaning that it is not motivated by religion or intended to promote religion²³.
• - The government action must have a **neutral effect**, meaning that it does not advance or inhibit any religion or religious group⁴ .
• - The government action must not create an **excessive entanglement**, meaning that it does not involve too much interaction or interference between the government and religious institutions .

If the government action fails any of these parts, it is unconstitutional under the Establishment Clause.

Bing, 6/25/2023

(1) Lemon Test - Definition, Examples, Cases, Processes - Legal Dictionary. https://legaldictionary.net/lemon-test/.

(2) Lemon Test | The First Amendment Encyclopedia - Middle Tennessee State .... https://mtsu.edu/first-amendment/article/834/lemon-test.

(3) Lemon Test | Encyclopedia.com. https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/lemon-test.

(4) Lemon Test Law and Legal Definition | USLegal, Inc.. https://definitions.uslegal.com/l/lemon-test/.

The **Establishment Clause** and the **Free Exercise Clause** are two provisions in the First Amendment that protect the freedom of religion from government interference. They have different but related functions:

• - The **Establishment Clause** prohibits the government from officially recognizing a national religion or favoring one religion over another. It also prevents the government from creating a fusion of governmental and religious functions or supporting the tenets of any religion²³⁵.
• - The **Free Exercise Clause** recognizes the right of individuals to believe and practice their faith, or not, according to their conscience. It also protects the government from prohibiting or interfering with any religion or religious group, unless there is a compelling public interest or a threat to public morals¹⁴ .

Sometimes, these two clauses come into conflict, such as when the government tries to accommodate or regulate religious practices in public schools, prisons, or workplaces. The courts help to resolve such conflicts by applying various tests and balancing the interests of both clauses.

Bing, 6/25/2023

(1) Relationship Between the Establishment and Free Exercise Clauses .... https://constitution.congress.gov/browse/essay/amdt1-2-6/ALDE_00000039/.

(2) First Amendment and Religion | United States Courts. https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion.

(3) Establishment Clause - Wikipedia. https://en.wikipedia.org/wiki/Establishment_Clause.

(4) The Free Exercise Clause vs. the Establishment Clause: Religious .... https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/intersection-of-lgbtq-rights-and-religious-freedom/the-free-exercise-clause-vs-the-establishment-clause/.

(5) Free Exercise Clause - Wikipedia. https://en.wikipedia.org/wiki/Free_Exercise_Clause.

Ideology is the set of beliefs, values, and preferences that influence how a person views the world and evaluates political issues. Ideology can play a role in Supreme Court decisions in several ways:

• - Ideology can affect how justices interpret the Constitution and apply legal principles to specific cases. For example, conservative justices may favor a narrow or originalist reading of the Constitution, while liberal justices may favor a broad or living reading of the Constitution¹².
• - Ideology can affect how justices weigh the interests and rights of different groups and individuals in society. For example, conservative justices may be more sympathetic to religious liberty claims, while liberal justices may be more sympathetic to civil rights claims³⁴.
• - Ideology can affect how justices align themselves with the political branches of government and the public opinion. For example, conservative justices may be more deferential to the executive branch and the states, while liberal justices may be more deferential to the legislative branch and the federal government .

Ideology is not the only factor that influences Supreme Court decisions. Other factors may include legal precedents, judicial doctrines, institutional norms, personal experiences, collegiality, and strategic considerations. However, ideology is often a significant and visible factor that shapes the outcomes and reasoning of many Supreme Court cases.

Bing, 6/25/2023

(1) Ideology in the Supreme Court | Princeton University Press. https://press.princeton.edu/books/hardcover/9780691175522/ideology-in-the-supreme-court.

(2) Analyzing ideological bias on the Supreme Court - The Stanford Daily. https://stanforddaily.com/2021/05/24/analyzing-ideological-bias-on-the-supreme-court/.

(3) Justices by Ideology | Visual First Amendment. http://visualfa.org/statistics/justices-by-ideology/.

(4) Ideology and Religious Bias in Supreme Court Decisions. https://www.rhmiller.com/ideology-and-religious-bias-in-supreme-court-decisions/.

Separation of church and state affects education in several ways. Here are some examples:

• - **Public schools** cannot establish a national religion, make religion mandatory for all students, or favor or interfere with any religion. They must respect the religious freedom and diversity of students and staff, and avoid excessive entanglement with religious institutions¹²  .
• - **Religious schools** can receive public funding in some cases, such as scholarships, grants, or vouchers, as long as they do not discriminate or indoctrinate students. They must also comply with state and federal regulations on curriculum, testing, and accountability  .
• - **Religion in the curriculum** can be taught as an academic subject, such as history, literature, or art, but not as a devotional practice or a source of truth. Teachers must be neutral and objective in presenting different religious perspectives and traditions, and avoid proselytizing or endorsing any faith .
• - **Religious expression** by students is protected by the Free Exercise Clause of the First Amendment, as long as it does not disrupt the educational process or infringe on the rights of others. Students can pray, read scriptures, form religious clubs, or wear religious symbols on their own initiative, but they cannot impose their beliefs on others or use school resources for religious purposes³⁴.

Bing, 6/25/2023

(1) Separation of Church and State - Partner with Schools. https://www.partnerwithschools.org/separation-of-church-and-state.html.

(2) Ask the Expert: What does separation of church and state mean in .... https://news.cornellcollege.edu/2019/11/ask-expert-separation-church-state-mean-americas-public-schools-report/.

(3) In U.S., Far More Support Than Oppose Separation of Church and State .... https://www.pewresearch.org/religion/2021/10/28/in-u-s-far-more-support-than-oppose-separation-of-church-and-state/.

(4) Keeping religion out of schools protects the separation of church and state. https://www.tennessean.com/story/opinion/2021/09/14/keeping-religion-out-schools-protects-separation-church-and-state/8317474002/.