The Separation of Church and State

Justice Sandra Day O’Connor warned SCOTUS in 2005 that church-state separation was at risk. They failed to listen.

  Rob Boston

Former Supreme Court Justice Sandra Day O’Connor died Friday. O’Connor, who was 93, retired from the high court in 2005, where she produced a mixed record on church-state issues.

O’Connor was a solid vote against coercive programs of prayer and worship in public schools, and she was wary of allowing government too much leeway in erecting and displaying religious symbols. She supported reproductive rights and over time grew more supportive of LGBTQ+ rights.

But she failed to see certain forms of taxpayer aid to religion, such as school vouchers, as a church-state violation. As a result, the high court upheld vouchers in 2002, and voucher programs now exist in states across the country, where they drain much-needed resources from public schools and foster taxpayer-funded discrimination and indoctrination.

Limits to funding

O’Connor, however, did recognize that there must be some limits to government funding of religion. In 2007, after retiring from the Supreme Court, she sat by special designation on the 8th U.S. Circuit Court of Appeals and heard arguments in an Americans United-sponsored lawsuit called Americans United for Separation of Church and State v. Prison Fellowship Ministries. That case challenged state funding of a fundamentalist Christian program operating in an Iowa prison. The program indoctrinated inmates in evangelical Christianity and discriminated against non-Christians by extending special treatment to inmates who were willing to embrace its religious outlook.

Alex J. Luchenitser, currently AU’s interim legal director, argued the case before the panel. The appeals court, including O’Connor, ruled in AU’s favor later that year, holding that public funding of the program was unconstitutional.

Near the end of her career on the Supreme Court, O’Connor seemed to realize that church-state separation was at risk. In a case dealing with a government display of the Ten Commandments, she challenged those who sought to undermine that principle, asserting, “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Why would we indeed? Our country would be a better place today if the court had heeded O’Connor’s warning.

Photo by Dennis Brack-Pool/Getty Images

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