What To Do About an Activist Theocratic Court

In my view, Supreme Court Justice Ruth Bader Ginsburg is one of the greatest women in American history.  She could be called young by Supreme Court standards. At 78 she’s much younger than my hero John Paul Stevens, who was vigorous on the court until age 90. Ginsburg has bravely faced both colon and pancreatic cancer, and no one doubts her brainpower. We need brains like hers.  

Yesterday, Justice Ginsburg took an important stand by joining the dissenting opinion in a ruling that could now make it more difficult for taxpayers to legally challenge government programs that aid religious organizations.

In a 5-4 decision, the court’s ruling in Arizona Christian School Tuition Organization v. Winn will keep alive an Arizona program that allows taxpayers to send money to private schools, mostly private religious schools, and then take a dollar-for-dollar tax credit. The decision blocks citizens from bringing suit by knocking aside a long-standing precedent that said citizens have standing in court to challenge laws if their tax money is used in a way that might violate church-state separation. The opinion, written by Justice Antony Kennedy, stated there was no discernable way to measure the effect of a tax credit on those bringing suit and therefore the harm they alleged was not actionable. This is one of the most theocratic decisions of the Roberts Court to date, and the activism displayed by Chief Justice John Roberts (remember “I’m just an umpire”?) and others in the majority opinion is stunning.

In Justice Elena Kagan’s first dissent, which was joined by Justices Ginsburg, Sonia Sotomayor, and Stephen Breyer, she correctly pointed out the court has directly faced the issue several times before and never even discussed the majority’s extreme idea that there is not even standing to address this clear violation of church–state separation. (In the 1968 ruling Flast v. Cohen, the Court declared that citizens had standing to sue the government specifically over violations of the First Amendment’s Establishment Clause.)  Justice Kagan put it starkly and correctly: The Arizona ruling, she wrote, “threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion.”  Read that sentence again to let its significance sink in.

In essence this means states have a loophole the size of a cathedral through which to drive violations of the separation of church and state – because, oh so sorry, no citizen has standing to address it.   As Justice Kagan correctly noted, if the government hands money to a favored religious group or hands a tax credit to the favored religious group, the result is the same: a violation of the separation of church and state.  It is simply a sleight of hand to deny standing through the latter option.

In order to reach this result the activist majority had to ignore decades long precedent in many decisions.  It was Justice Roberts, not me, who made such a show of respecting precedent during his confirmation hearing. Well, not so much now.

Back to Justice Ginsburg.  Ginsburg has expressed admiration for Justice Brandeis’s decision to retire at age 82.   Justice Antonin Scalia, an extreme theocratic activist, is only three years younger than Ginsburg.  Justice Anthony Kennedy, sometimes referred to as the swing justice, leans theocratic: It was he who authored the majority opinion in yesterday’s ruling. Justice Kennedy was born in the 1936, the same year as Scalia.

Regardless of which Justice retires next, this court teeters on the edge of theocracy, and, indeed yesterday, crossed a dramatic line heading in that direction.

The saddest note for me about the ruling is perhaps that the Obama administration stood with the majority.  Justice Kagan, former Obama administration Solicitor General, thankfully did the right thing in her vigorous dissent.  The Obama administration is the same administration that -- despite President Obama’s pledge of July 1, 2008 -- has failed to sign the Executive Order prohibiting proselytizing and discrimination in so-called faith-based initiatives.  (The President does not need Congress to do the right thing here. All he needs is a pen.).

The Secular Coalition for America is a non-partisan organization.  We are here to face realities, not advocate for candidates.  I am fully aware of the theocratic gold rush now blazing through Iowa as potential candidates like Michelle Bachmann, Mike Huckabee, Newt Gingrich and company race to prove who is the most theocratic candidate.  

Regardless of what happens in the 2012 election, we as a movement must be more ready to lobby the next Supreme Court fight. We must be ready whether it turns out that we are fighting against a theocratic court nominee or trying to shore up an administration to follow its stated principles and nominate a justice who supports about church-state separation as our founders intended.  We must stand at the ready to get Members of Congress to do the right thing regarding a nomination.  We must work to make it a requirement that nominees embrace the principles of Jefferson and Madison when it comes to separation of church and state.

But there is something even more important:  We have launched the Secular Coalition for Arizona and the Secular Coalition for Alabama. Our goal is 51 such coalitions (including D.C.) by 2020.  But the sooner the better.  Our influence in Washington will grow when we can report more feet on the ground in the home districts. 

Secular Americans have a patriotic duty to get organized with more numbers and more vigor, because, as of yesterday’s ruling, the threat of theocracy is at our door. And, given Justice Kennedy’s attitude, even my hero Justice Ginsburg may not be enough to protect our Constitution.

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