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U.S. Supreme Court,
Constitutional Law

Aug. 3, 2020

Rulings show the fall of the wall between church and state

Four U.S. Supreme Court cases from last term, coupled with the news that the Catholic Church received $1.4 billion in COVID-19 relief funds, and viewed in conjunction with the pro-religion mission-modification of the DOJ Civil Rights Division, demonstrate that we, in the United States, are pivoting away from the Enlightenment ideals of our founding. Some on our federal courts, in this administration, and in our Congress, see no problem in prioritizing religious freedom rights over anti-discrimination rights.

Julie A. Werner-Simon

Phone: (213) 894-5456


Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at University of Southern California's Gould School of Law, Drexel University's Kline School of Law, and is also a legal analyst at Drexel's LeBow School of Business.

Four U.S. Supreme Court cases from last term, coupled with the news that the Catholic Church received $1.4 billion in COVID-19 relief funds, and viewed in conjunction with the pro-religion mission-modification of the DOJ Civil Rights Division, demonstrate that we, in the United States, are pivoting away from the Enlightenment ideals of our founding. Some on our federal courts, in this administration, and in our Congress, see no problem in prioritizing religious freedom rights over anti-discrimination rights.

Whose Civil Rights Will DOJ Enforce?

I am dispirited to see how far the Civil Rights Division has strayed from its mission. Attorney General William Barr has tasked the Civil Rights Division to seek out those who are "religiously oppressed" -- including those whose religious liberties are being infringed upon by "COVID large-gathering-bans." The DOJ has let it be known that it will bring a "legal-full-court-press" to those who restrict, in any measure, religious exercise.

Eric Dreiband, chief of the Civil Rights Division, recently warned Gov. Gavin Newsom that California's COVID restrictions discriminate against the religious. Dreiband previously announced in March that DOJ's new Religious Rights Task Force will conduct "very aggressive enforcement" and "takes religious freedom very seriously, zealously and vigorously." This is now a DOJ "core objective," while improving social justice through the use of federal consent decrees against police departments, those with a documented history of undue force, discrimination or racial violence, is not.

Consent decrees are DOJ's means to ferret out and ameliorate police abuse. The consent decree tool provided to DOJ by Congress in 1994 creates a court-enforceable agreement mandating that police departments engage in reform. In the last administration, the Civil Rights Division entered into 14 such consent decrees with troubled police departments. In this administration, there have been none.

Thomas Jefferson Urged Us to "Build that Wall"

It was Thomas Jefferson who coined the phrase about building a "wall of separation between church and state." But those words are not in the Declaration of Independence (which he authored), nor are they in the U.S. Constitution (written by others while Jefferson was detailed to France).

Jefferson's words were written in January 1802 to assure Baptist churches in Connecticut that they would not be required to become Congregationalists (the then-predominant official religion of that state). Jefferson told the Baptists that American liberty was premised on a wall of separation as religion was "a matter which lies solely between Man & his God."

Jefferson was long dead when his wall-imagery was resurrected in an 1878 Supreme Court opinion, Reynolds v. United States, concerning "life-style" activities in the Utah territory. Reynolds held that the First Amendment's religious freedom provisions did not permit bigamy, just as they would not permit someone claiming the religious right to engage in human sacrifice or bride-burning. Chief Justice Morrison Waite explained that the wall-like demarcation was necessitated by the conflict between the laws of a civil government and those of religious practice. The courts would not make "the professed doctrines of religious belief superior to the law of the land."

From time to time, the Supreme Court has reinforced the wall of separation to include, for example, banning prayer in public schools. Republican-appointed Supreme Court justices, including Potter Stewart and former Chief Justice William Rehnquist, have used their dissents in such cases to lament the misinterpretation of Jefferson's "wall of separation metaphor."

Another Brick from the Wall

What the Supreme Court builds, it can also dismantle -- and our current Supreme Court took many bricks from the wall this past term.

The Supreme Court's June 15 decision in Bostock v. Clayton County, 2020 DJDAR 5681, was hailed as a gay-trans-rights victory in employment. The court held that a skydiving business, a funeral home, and a county social services department each unlawfully fired employees on the basis of sex or sexual identity. Justice Neil Gorsuch, who wrote the majority opinion, stressed that none of the businesses had raised a religious objection. Had they done so, he stated, the outcome of the case might have been different. The Bostock decision foretold that there "could be" some future cases where religion would trump anti-discrimination.

And there were. Gorsuch knew there were multiple religious liberty cases in the pipeline. Within three weeks, three more religious rights decisions had issued. Each decision represents another brick being taken from the wall.

The first issued June 30. In Espinoza v. Montana Department of Revenue, 2020 DJDAR 6574, the Supreme Court, in a 5-4 opinion by Chief Justice John Roberts, held that the Montana Constitution's bar on state funds from going to religious institutions is unconstitutional as it demonstrates hostility towards religion. To separate the religious from the secular when doling out state funding or tax benefits constitutes discrimination against the exercise of religion and violates the First Amendment.

Then, on July 8, in Our Lady of Guadalupe School v. Morrissey-Berru, 2020 DJDAR 6976, in a 7-2 opinion by Justice Samuel Alito, the court upheld the Catholic Church's firing of two elementary school teachers -- one with cancer as they did not want to pay her sick leave, and another who was 65 and fired for someone younger and cheaper. The court said the First Amendment's free exercise clause inoculates the church from complying with anti-discrimination employment laws.

On the same day, the Supreme Court issued Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 2020 DJDAR 6994. In a 7-2 opinion by Justice Clarence Thomas, the court ruled that nuns who run old age and convalescent centers have the right to deny their female employees contraception coverage on their employer-employee health plan. The nuns, as "employers," were considered to be constitutionally exercising "sincerely held religious or moral objections" to providing birth control to women. Additionally, the nuns were "exempted" from permitting their employees to have no-cost contraception access via the formerly seamless "federal workaround" as instituted in the prior presidential administration.

A Changing Judiciary

It is the Senate that has installed, from the lower federal courts to the Supreme Court, federal jurists who make these enforceable determinations. In the last three years, it has confirmed 200 judges nominated by President Donald Trump. This is at a faster clip than any president in the modern era.

The constitution devotes only 67 words to Congress' power to create and manage the courts. Article III, Section 1, states the following: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Congress could, under Article III authority, enlarge the number of jurists on all of the federal courts. Since the time of President George Washington, when Congress decided there would be six justices on the Supreme Court, the creation and management of the federal courts has always been a congressional decision. During the Civil War, Congress authorized 10 seats on the Supreme Court, and a year after Lincoln's death, Congress, with the passage of the Judicial Circuits Act of 1866, decided it would consist of seven seats. Further, there was also a practice of appointing a single justice from each circuit and the composition of states in any circuit was intermittently shuffled.

Prior to the 1866 Act, there were 10 federal circuit courts, with Oregon and California in the 10th Circuit. The 1866 Act reduced the number of circuits to nine, comprised of the then-36 states. More change was afoot three years later with Congress' passage of the Judiciary Act of 1869. Congress decided that the Supreme Court would have eight associate justices and one chief justice.

In February 1937, during the Great Depression, President Franklin D. Roosevelt miffed at the Supreme Court's anti-New Deal rulings, announced his desire for an expansion of the court to up to 15 justices. He proposed legislation called the Judicial Procedures Reform Bill of 1937, and in his March 9, 1937, fireside chat announced his intention to push for the bill: "This plan of mine ... seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution 'a system of living law.' The court itself can best undo what the court has done."

The Senate Judiciary Committee held weeks of hearings beginning the following day. While neither the public nor the Supreme Court were keen on the measure, curiously the rulings at the Supreme Court changed and the court began upholding New Deal-type legislation. After just two weeks of the hearings, the court finally upheld a state minimum wage law in a case brought by hotel housekeeper Elsie Parrish. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (March 29, 1937). By July 1937, the Senate pulled FDR's bill. It was never put to a vote on the floor. Roosevelt's think-outside-the-box approach did not result in a change in the number of seats on the Supreme Court, but it served an important historical purpose. It reaffirmed that it was Congress' Article III "time-to-time" prerogative to shape and design the federal courts as it sees fit.

A new Congress could invoke that power. They should. These truths, which we hold to be self-evident, require nothing less. 


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