A telling moment occurred yesterday during the Senate Judiciary Committee’s hearing for Supreme Court nominee Amy Coney Barrett. She said something that makes it pretty clear that she’s eager to begin rewriting church-state law.
The comment came as Barrett was being questioned by U.S Sen. John Cornyn (R-Texas), who asked Barrett about school-sponsored prayers before public school football games, an issue that reached the high court in 2000. Barrett invoked her mentor, Justice Antonin Scalia, for whom she clerked in 1998.
“When I interviewed for my job with Justice Scalia, he asked what area of the court’s precedent that I thought, you know, needed to be better organized or that sort of thing. And off the cuff I said, ‘Well, gosh, the First Amendment.’ And he said, ‘Well, what do you mean?’ And I fell down a rabbit hole of trying to explain without success -- because it is a very complicated area of the law -- how one might see one’s way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. It’s a notoriously … difficult area of the law. And to that, you know, there is tension in the court’s cases -- and I’m giving you no better an answer, I assure you, than I did to Justice Scalia that day. It’s been something that the court has struggled with, you know, for decades to try to come to a sensible way to apply both of those clauses.”
For those of you who aren’t attorneys, the religious freedom provision of the First Amendment is 16 words long: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” Members of the legal community often call the first part of that the Establishment Clause and the second part the Free Exercise Clause.
Conservatives love to pretend that these two clauses are at perpetual war with one another, but the claim makes no sense. The founders would not have given us a religious freedom provision with such inherent conflicts.
To the extent that there is conflict, it came about because conservative courts have refused to accept the meaning of the Establishment Clause. In 1971, the Supreme Court fashioned a test designed to ensure that church-state separation would be followed. This test, called the Lemon Test for the case that spawned it, Lemon v. Kurtzman, holds that church-state separation is violated if a law violates any of these three conditions: the law fails to have a legitimate secular purpose; the law has the primary effect of advancing or inhibiting religion; the law fosters excessive entanglement between church and state.
The Lemon Test held sway for a few years, but conservatives on the high court began chipping away at it during the 1980s. That trend accelerated in later years. Although it has never been explicating overturned, the test is clearly on judicial life support today.
A favorite trick of judicial opponents of church-state separation is to take an established precedent, undermine it and then complain that it doesn’t work and must be overruled. Barrett has employed a euphemism – she wants to “better organize” the First Amendment’s religious freedom provisions – but no one should be fooled. She’s advocating for rewriting church-state law.
No thanks! Our country’s religious freedom provision was organized perfectly well when it was written. Barrett and others would do well to remember the words of Vice President Walter Mondale who in 1984 remarked, “Today, the religion clauses of the First Amendment do not need to be fixed; they need to be followed.”
Photo: U.S. Sen. John Cornyn questions Amy Coney Barrett. Screenshot from C-SPAN.