October 2020 Church & State Magazine - October 2020

A Justice For All: Ruth Bader Ginsburg Was A Champion Of Church-State Separation And Religious Freedom

  Rob Boston

When President Bill Clinton nominated Ruth Bader Ginsburg to the U.S. Supreme Court in 1993, the response was, on balance, positive. The nominee process was not always so politicized back then, and most senators reacted favorably.

There were a handful of exceptions. Among them was U.S. Sen. Jesse Helms (R-N.C.), who noted that Ginsburg had done some work for the American Civil Liberties Union and said he would not support her. At the time, I remember thinking, “If Helms, a consistent opponent of civil rights, is against this judge, she must be all right.”

Ginsburg, who won confirmation on a 96-3 vote, turned out to be more than all right. She was a veritable champion of church-state separation and individual freedom, and she’ll be remembered as one of the strongest advocates for that cause ever to grace the high court bench.

Over the years, I had the privilege of watching Ginsburg in action while I was covering oral arguments in church-state cases at the Supreme Court. I’m not a lawyer, but even I could tell that her questions were succinct and right to the point. She had a way of cutting through the fog that can surround legal arguments. I often got the impression that she was putting things through a simple filter: Would this policy advance human rights or take them away? Would it make anyone feel like a lesser part of the American experiment?

Indeed, Ginsburg told The Forward in 2018, that her experiences in life had led her to understand the plight of anyone deemed to be an “outsider.”

“Perhaps I should start by saying, I grew up in the shadow of World War II,” she said. “And we came to know more and more what was happening to the Jews in Europe. The sense of being an outsider – of being one of the people who had suffered oppression for no … no sensible reason … it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”

A statement of her church-state philosophy is perhaps best summed up in her dissent in American Legion v. American Humanist Association (2019), the case involving the towering Bladensburg Cross on public land near Washington, D.C., in which she observed that church-state separation “protects the integrity of individual conscience in religious matters” and “guards against the anguish, hardship, and bitter strife that can occur when the government weighs in on one side of religious debate.” As she put it, “separating the two preserves the legitimacy of each.”

Ginsburg understood that religious freedom should not be used to take away the rights of others or cause them harm. As the Trump administration, a handful of employers and a lot of Christian nationalists attacked the birth control benefit in the Affordable Care Act, Ginsburg supported it every time. Most recently, she wrote in her final dissent, in Trump v. Pennsylvania this summer, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

Our nation is a poorer place because Justice Ginsburg is no longer with us. By all means, take some time to mourn her passing, but bear in mind that her death is sure to spark a bruising partisan battle over her replacement. Although Republican leaders in the Senate refused to consider allowing President Barack Obama to replace Justice Antonin Scalia, who died in February 2016, arguing that nine months was too close to an election, they’ve already said they won’t impose that condition this time. Senate Majority Leader Mitch McConnell (R-Ky.) has vowed there will be a vote on a Trump nominee this fall.

Let’s get to work: The fate of separation of church and state has never been in a more precarious position, and we’re going to have to fight with all we’ve got to preserve it.

I have a feeling Justice Ginsburg would approve.

Editor’s Note: This article first appeared on Americans United’s “Wall of Separation” blog. At the time this article was written, President Trump has not yet nominated Amy Coney Barrett to replace Ginsburg. Check AU’s website, au.org, for updates.


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