The OLD Philosopher – John M. Miller
Every June the US Supreme Court makes public most of the judicial decisions they have decided during the previous year. Probably they would be better off letting us know their conclusions on each case as they create those decisions. That way, most of the populace who care about such matters would not be supremely enraged at them for months afterward. But they have always done what they always do, and it is utterly unimaginable they would change anything they have always done, don’t you know. An example of the hoary tradition of the Supreme Court is that they would never overturn stare decisis, i.e., alter statutes that were determined by previous Supremes, that govern entire constellations of case law.
In one decision, SCOTUS ruled that a Christian assistant football coach in Washington State could continue to pray silently in public, at the fifty-yard-line, no less, at half-time during each home game. Would they have done that if the pray-er was a Native American or Muslim or Hindu or Wiccan? I doubt it, especially with the particular membership of the 2021-2022 court. There were five Catholics and one Episcopalian (who was raised Catholic) who were nominated by Republican presidents who ruled in favor of the coach, and one Mainline Protestant, one Catholic, and one Jew who were nominated by Democratic presidents who ruled against him.
I don’t know this, and no one will ever know, but I believe the six Republican justices were strongly influenced in their decisions on the grounds of their own religious inclinations. I also am certain they would never admit that. But it is a bad precedent to permit any kind of religious prayer in any kind of public setting. To do so breaks an American legal tradition of more than two centuries. Furthermore, this whole concept demeans prayer. Watching a man, however well intended, pray at the fifty-yard-line surely sets the teeth on edge of many who watch the man in his public religiosity. Without doubt, my teeth would grind, were I there to see it.
In the second case, they allowed school districts in Maine to demand funds for religious schools in the state where there is no public high school in the school district. BAD idea! Regardless of their ruling, they promoted state support of parochial education, and that violates the principle of separation of “church and state” (better in this inclusive era to say “religion and state”). It is not only legitimate but institutionally wise for religious congregations to establish parochial schools, but it is not acceptable to support them with any tax money. Those who believe in religious schooling for their children must pay for it or find someone else who is willing and able to pay for it. But the same 6-3 decision by the same six deciders broke a cultural and legal understanding of 235 years.
The third decision, however, was the most egregious. It was when, by 5-4, four Republican Catholics and one previously-Catholic-now-Episcopalian voted to rescind the Roe vs. Wade decision of half a century ago that guaranteed women the right to an abortion under carefully proscribed conditions, if they choose to exercise that right. Roe was one of the most important stare decicis SCOTUS pronouncements in the history of the Court. By the stroke of six pens, however, it was cast into the SCOTUS trash bin. Since the Constitution does not specifically guarantee that right, they said, only the States can do it. Chief Justice John Roberts, a Republican Catholic, and the three Democratic appointees voted against taking a long-delayed legitimate federal right away from American women. The women of most developed secular nations possess that right.
Nobody in the majority of any of these three landmark decisions would ever admit their personal conclusions were based on their personal religious convictions. Anyone who truly believes that also likely believes in the Easter Bunny and the Tooth Fairy.
As a Presbyterian parson who has been preaching for nearly six decades, I think everyone should be free and even encouraged to hold whatever religious beliefs are dear to them. Nevertheless no jurist at any level of government should pass judgment on legal issues primarily or even tangentially on the basis of their religious beliefs. In terms of judicial equity, it is imperative for every judge in every court to bear that in mind.
July 2, 2022
John Miller is Pastor of The Chapel Without Walls on Hilton Head Island, SC. More of his writings may be viewed at www.chapelwithoutwalls.org.