>Home >Religious Liberty Updates >Current Cases Commentary >The Right’s Trifecta at the Supreme Court – Repudiating Three Amendments in One Week!

The Right’s Trifecta at the Supreme Court – Repudiating Three Amendments in One Week!

July 2022

I was trying to process a series of decisions this week from the Supreme Court, and all of a sudden, it struck me: the Court’s shenanigan’s remind me of an old favorite Waren Zevon tune: “Send Lawyers, Guns and Money.” I know, the parallel seems a bit remote, but you see, the Supreme Court handed down a trifecta of decisions dealing with babies, guns and money. And babies, guns and money represent the Trifecta of triumphs of Christian Nationalism. Indeed, babies, guns and money are all big ticket items on the Christian Nationalist agenda. The Supreme Court also repudiated not one, not two, but three of the first ten amendments to the Constitution, aka, the Bill of Rights.

Most of the media attention has been on babies, or to be more precise, unborn babies. Seventh-day Adventists, like most Christians, generally believe abortion is immoral, and improper in any but exceptional circumstances. But our respect for life can blind us to the deeper significance of the Supreme Court’s rulings.

Justice Alito writing for the court’s majority rejected a constitutional right to abortion as insufficiently rooted in the nation’s history and tradition, and definitely not implicit in the American concept of ordered liberty. In so ruling, Alito directly contradicted the very language of the Bill of Rights, and the reason why we almost didn’t have a Bill of Rights in the first place. James Madison was a reluctant advocate for the Bill of Rights. Why? Because of his fear that any list would be incomplete and interpreted as precluding extending additional rights in the future.

The framers of our constitution, sharing Madison’s concern, adopted the Ninth Amendment, which holds: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment explicitly contradicts Justice Alito’s rationale that only those rights with a long historical tradition should be considered constitutional. While there may well be good reasons to disparage a right to abortion, the nation’s history and tradition and concept of ordered liberty are not among them. So it goes, nullifying the Ninth Amendment’s promise that the Bill of Rights is not an exclusive list. I doubt very much that many Americans rejoice that they lack any meaningful right to privacy. Privacy, you see, is the root of the finding that women have a limited right to decide for themselves whether or not to have an abortion.

While we’re at it, how much history counts? Do the 49 years Roe v Wade was in effect count as sufficient history? And if not, what other decisions from the 1950s and 1960s might be up for grabs? Decisions prohibiting Bible reading in public schools? Organized school prayer? School Desegregation?

Perhaps the answer is found in the case decided the day before the Supreme Court struck down Roe v. Wade in the Dobbs case. That case struck down a one hundred year old regulation prohibiting open carry of handguns in the State of New York. Consider the text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What kind of militia does the Amendment say is required? A well regulated one? Then why, pray tell, did the Supreme Court strike down a century old New York law restricting open carry of handguns as an inappropriate regulation? The stated reason was to extend the Second Amendment’s right of an individual to bear arms. Yet, such a right was not recognized for more than two hundred years, until 2008, in District of Columbia v. Heller, and is not obvious from the text of the amendment.. In that case, the Court recognized for the very first time the right of self defense, a right found implicit in America’s tradition of ordered liberty, despite our founding fathers’ neglect to mention such a right in the first set of amendments, or in any additional amendments. (For the record, I’m all for a right of self defense!)

It is simply not accurate to say that an individual right to bear arms is deeply rooted in the nation’s history and tradition, and implicit in the American notion concept of ordered liberty. Instead, regulation of gun safety is deeply rooted historically.

Which finally brings us to money. Ever since Roman Catholic immigration began in earnest in the nineteenth century, and Catholics encountered the King James Bible in public schools, the Catholic Church has been pursuing tax dollars to support its own parochial school system. Catholics complained that the public school system was hostile to their religious values, much as Christian Nationalists today voice complaints about the secularism in public schools. As long as Protestant hegemony ruled in public schools, Protestants opposed such funding. It is simplistic to write this off to anti-Catholic bigotry, although many friend of the court briefs have done just that in recent years.

The prohibition on public funding of religious education with tax dollars is, in fact, deeply rooted in the nation’s history and tradition, and not merely implicit but explicit in the American concept of ordered liberty. In the colonial period, Americans were routinely taxed to support religion. Baptists were the foremost advocates of the principal of “voluntarism” in matters of religion and opposed paying taxes even to support their own church. James Madison came to view the issue as a fundamental matter of conscience. And when writing about the rights of life, liberty and property, Madison opined that “conscience is the most sacred or all property.” Just prior to the adoption of the Constitution, Virginia was the scene of a legislative battle over funding of teachers of religion. Madison organized a massive petition drive to defeat the bill and came back the following year with enactment of Thomas Jefferson’s Religious Freedom Bill. Tax funding of religion was a form of religious “establishment,” the very thing the First Amendment begins by prohibiting: “Congress shall make no law respecting an establishment of religion…” It is noteworthy that the Supreme Court routinely invoked the history of Virginia in parsing just what sorts of public aid must be denied to religious schools for several decades, until it began to abandon any respect for the wall of separation between church and state with a case in 2000, Mitchell v. Helms. I was present in the Supreme Court the day Mitchell v. Helms was argued, having filed an amicus brief, and was also admitted to the Supreme Court Bar that day. Lead attorney opposing aid to religious schools was the prominent Seventh-day Adventist attorney, Lee Boothby, ably assisted by Nicholas Miller.

Protestants were largely content with American public schools until a series of Supreme Court decisions that created the perfect opportunity for a Christian school movement. Beginning in 1954 with the Brown v. Bd of Education decision requiring the desegregation of public schools and continuing with decisions in the early 1960s prohibiting government sponsored prayer and Bible readings in public schools, Protestants established their own schools by the tens of thousands. These were predominantly racially segregated schools. When the tax exempt status of such schools began to be challenged in the 1970s, Protestants began to align politically with Catholics. Together, they grew into a new conservative powerhouse. And at the top of the political agenda were, you guessed it, babies, guns and money. To be fair, guns is a mostly Protestant concern. But opposition to abortion and seeking money for religious schools are issues that have cemented the political union of Catholics and Protestants.

Which brings us to yet a third Supreme Court decision this week, the case out of the State of Maine, requiring Maine to include religious schools in a form of tuition voucher program. Maine expressed an interest in providing a secular public education to all students. But as a rural state, there are places that lack a public high school, hence, Maine’s program to fund attendance at a secular, private school for kids lacking access to a public high school. The Supreme Court held it was discriminatory to exclude religious schools. While the Court has previously permitted states to include religious schools in voucher programs, this was the first time the Court held that states must fund religious schools.

The nation’s history and tradition is that Americans cannot be forced to pay taxes to support religious teaching, instruction or indoctrination. Such tax funding of religion was the essence of what our founding fathers considered an “establishment” of religion. But that term no longer has any reliable constitutional meaning or content.

Long ago, a prophetic voice raised up a concern that America would one day “repudiate every principle of its Constitution as a Protestant and Republican government...” under the combined influence of Protesant and Catholic. The writer, Ellen G. White, also observed that Spiritualism would be part of this mixture. The foundation of spiritualism, in her day, was rooted in the Greek concept of the immortality of the soul. Because the soul was immortal, the dead were not really dead, and there could be communication with them. Catholicism offered a different approach: the immortal soul is believed to enter the womb at the moment of conception. This doctrine regarding the immortality of the soul informs the Catholic political push for greater restrictions on abortion, and ultimately, as we just saw, five of six Roman Catholic Supreme Court justices voted to overturn Roe v. Wade.

The political rhetoric of the left has had a field day highlighting the hypocrisy of a court which says, “let the states decide” when it comes to babies, but not guns. They point out the hypocrisy of a “pro life” movement celebrating both restrictions on a woman’s right to choose an abortion, and the extension of the right to open carry guns in New York. It’s no wonder so many question what it means to be truly “pro-life.” But it is important to look beyond the politics, left or right, and connect the dots. This is not a conservative court. A conservative court does not throw out long established rights.

Most Americans would be surprised to learn they have no right of privacy. Or that rights they believe they possess could so easily be unraveled by the next court case.

In one week, Christian Nationalism hit the trifecta: they established the right to receive tax funding for religious instruction and indoctrination, the right to open carry firearms, and the right of states to control women’s bodies. These have been big ticket items on the Christian Nationalist agenda for some time. The Christian Nationalist powerhouse backed Donald Trump in order to get a Supreme Court faithful to its agenda. The strategy has proven wildly successful – for this political agenda – but a disaster for our nation’s history and tradition of ordered liberty. I don’t know where this Supreme Court will take us next, but I do expect its recent decisions to exacerbate existing polarization. The left and right feed off each other, and gain energy, money and power by demonizing the other. Such polarization is tearing our nation apart.

Years ago, when I was a young history major with aspirations to study law, and to pursue a career in religious liberty, an astute faculty advisor directed me to study the Supreme Court’s 1961 decisions upholding Sunday blue laws. In particular, he directed me to do an honors thesis analyzing the court’s use and abuse of history. This endeavor proved to lay a solid foundation for my future. I learned that the Supreme Court is prone to rewriting history for its own purposes. Today, we hear an earful of conservative blather about the original intent of the framers of our constitution. I actually believe that’s a pretty good place to start. The problem is that the justices don’t actually care what the framers thought or did, they simply attribute to the framers their own values. No wonder that progressives dismiss the endeavor to determine original intent. Below is an excerpt from James Madison’s petition against tax funding of religious education. He understood such funding as the first step toward the Inquisition. The Supreme Court is able to rewrite the views of our founding fathers only due to our own neglect to learn our history.