Perverting Precedence, by Ken Burrows: Freethought Views, August 2022

Perverting Precedence

By Ken Burrows

Much has been written about how the conservative majority on the Supreme Court has lately paid little heed to respecting precedent, despite its three newest appointees having pledged in their hearings to do so. Instead the Court in Dobbs v. Jackson overturned 1973’s Roe v. Wade, which had protected autonomy regarding abortion decisions for almost 50 years. Days later, in Kennedy v. Bremerton School District, the Court re-opened the door to public school prayer, undermining precedents dating back to the early 60s. This ruling also gutted the Lemon Test, which arose from 1971’s Lemon v. Kurtzman case. The Lemon Test was a judicial “screening” measure used to keep church and state from getting overly entangled. It had repeatedly been cited through the years as precedent to follow.

So the conservative justices are no admirers of legal precedence. But there’s another precedence they pervert as well, and that is a historical precedence. A precedence sometimes referred to as originalism, the idea of being faithful to the original meanings and intents of our Founders. But actions by the self-identified originalists on the Court belie this faithfulness they claim to embrace.

Consider Justice Neil Gorsuch, for example. In another recent Court ruling, Carson v. Makin, he approved tax dollars being used to fund religious education. He did much the same in 2020 in Espinoza v. Montana Department of Revenue. And yet it was Thomas Jefferson himself who wrote in his 1786 Virginia Statute for Religious Freedom that “…to compel a man to furnish contributions for the propagation of opinions which he disbelieves is sinful and tyrannical.” James Madison, father of the Constitution, wrote in his 1785 Memorial and Remonstrance Against Religious Assessments that using taxes to pay religious teachers was “a dangerous abuse of power,” and he deemed a proposal to do that an alarming “experiment on our liberties.” These original intents are thus quite clear.

In Espinoza, Gorsuch added a concurrence in which he insisted free exercise of religion includes both belief and freedom to act on belief, even when such action harms others. He had adopted such a position earlier when he supported Hobby Lobby’s religious exemption to covering contraception in the Affordable Care Act, thus empowering the religious belief of a few to limit the legislated rights of many. Jefferson in his day wrote that using religion to withhold another’s rights “deprives him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” Original intent is again quite clear.

Gorsuch has also, astonishingly, questioned whether it is unconstitutional for government to endorse religion. Madison wrote that to think a civic functionary can competently judge religious truth “is an arrogant pretension.” He said a mixture of religion and government is “an evil which ought to be guarded against.” Jefferson said for a civil magistrate to officially favor religion “is a dangerous fallacy that at once destroys all religious liberty.”

As these conservative justices stretch “free exercise of religion” into religious favoritism and privilege, they ignore or denigrate both legal and historical precedence. This perversion threatens established rights, some long-standing. And it is increasingly obvious that the legacy of our Founders is also at risk of being lost, as the promise by these justices to adhere to original intents rings hollow.


Published in the August 3-9, 2022 Freethought Views column in the Colorado Springs Independent with the quotation below.

Religion has no place in public policy.

---- Sen. Barry Goldwater