When the US Supreme Court granted injunctive relief to Catholic and Jewish houses of worship against the New York governor’s executive order to fight the spread of Covid 19, many eyebrows were raised. In anticipation of the verdict, the governor removed the houses of worship from the red and orange zones, indicating a blow to executive’s constitutional duty to protect public health. The current decision US Supreme Court’s decision is a continuation of a long list of decisions that push the American polity towards the right. In The Religion Clauses, Erwin Chemerinsky and Howard Gillman show that the United States Supreme Court decisions in the last five years show that it is likely to reinterpret the Religion Clauses of the First Amendment. Virtually, all these cases were about the Religion Clauses whether the government can accommodate Christianity.
The five conservative justices — John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Bret Kavanaugh — reject the idea of a wall separating church and state. They believe that the Establishment Clause — the provision of the First Amendment prohibiting any law respecting the establishment of religion — should be interpreted to accommodate Christian participation in government and government support for religious institutions particularly Christian institutions. Chemerinsky and Howard Gillman say that these five judges seem to believe that the government violates Establishment Clause only if it coerces religious participation or discriminates among religions in the provision of benefits. Under this approach, the Establishment Clause is not violated by religious symbols on government property, or by religious observances at government functions, or by the government providing financial support to religious institutions even when the money is used for religious indoctrination. Their decisions come only in favor of Christian causes. When it is a non-Christian religion suffering discrimination (such as Trump v. Hawaii), the five most conservative justices reject a challenge based on the Religion Clauses.
Chemerinsky and Gillman argue that the five justices are interpreting the Constitution to further Christian religious beliefs, finding that the government does not violate the Establishment Clause if it acts to further Christianity and that it must, based on free exercise of religion, accommodate Christians who want exceptions from general laws, such as those requiring that employers provide contraceptive coverage or prohibiting discrimination against gays and lesbians. The most vocal and politically powerful groups advocating closer ties between the government and religion also arise from more conservative Christian sects. They argue in favor of separating government and religion, both with regards to the Establishment Clause and the Free Exercise Clause. They explain that this is consistent with the views of those who drafted the Constitution, is supported by the lessons of history, and most important, is the best way to interpret the Religion Clauses for a society that is increasingly religiously diverse.
Defining their vision, they write, “Preventing government officials from aligning themselves with certain religious practices and traditions ensures that the American republic will be a welcoming and supportive place for people of all faiths as well as for people of no particular religious faith. It also puts an end to the hostility that the government would otherwise exhibit toward non-favored religious practitioners.” They argue that the county is made better when religious practitioners are free to proudly display their religious identities in public, and if they so choose on their own, to fill the public sphere with religious displays and symbols, so that we might celebrate people of faith and the great religious diversity of our fellow citizens. It would be wrong for anyone to attempt to rid the public discourse of all vestiges of religion. That would violate the rights of religious people, and it would improperly put the government in the position of preferring secular identities and cultures to religious ones. Principles of religious freedom and the separation of church and state, as well as freedom of speech, would prohibit such an effort.
The Religion Clauses is one of the few scholarly works that examine the role of the US Supreme Court in the rise of Christian right in recent decades. The book argues that the Supreme Court’s decisions in recent years promote Christian conservatism in American politics. The authors confront and explain the most complex and controversial issue of what role religion should be allowed to play in a modern state. They convincingly argue in support of separation of church and state. If you want to understand contemporary debates on America’s drift to the right, you must read this book. It is packed with knowledge and new perceptive analysis. It is a very thoughtful and nuanced work that will take the debate on the subject to the next level. Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine have unmatched academic credentials to write on this important and complex subject.