US Supreme Court takes aim at separation of church and state

The conservative-majority US Supreme Court has chipped away at the wall separating church and state in a series of new rulings, eroding American legal traditions intended to prevent government officials from promoting any particular faith.

In three decisions in the past eight weeks, the court has ruled against government officials whose policies and actions were taken to avoid violating the US constitution’s First Amendment prohibition on governmental endorsement of religion — known as the “establishment clause”.

On Monday the court backed a Washington state public high school football coach who was suspended by a local school district for refusing to stop leading Christian prayers with players on the field after games.

On June 21, it endorsed taxpayer money paying for students to attend religious schools under a Maine tuition assistance programme in rural areas lacking nearby public high schools.

On May 2, it ruled in favour of a Christian group that sought to fly a flag emblazoned with a cross at the Boston city hall under a programme aimed at promoting diversity and tolerance among the city’s different communities.

The court’s conservative justices, who hold a 6-3 majority, in particular have taken a broad view of religious rights.

They also delivered a decision on Friday that was hailed by religious conservatives — overturning the 1973 Roe v Wade ruling that legalised abortion nationwide — though that case did not involve the establishment clause.

Cornell Law School Professor Michael Dorf said the court’s majority appeared sceptical of government decision-making premised on secularism.

“They regard secularism, which for centuries has been the liberal world’s understanding of what it means to be neutral, as itself a form of discrimination against religion,” Dorf said of the conservative justices.

In Monday’s ruling, conservative judge Neil Gorsuch wrote that the court’s aim was to prevent public officials from being hostile to religion as they navigated the establishment clause.

Gorsuch said that “in no world may a government entity’s concerns about phantom violations justify actual violations of an individual’s First Amendment rights”.

It was President Thomas Jefferson who famously said in an 1802 letter that the establishment clause should represent a “wall of separation” between church and state.

The provision prevents the government from establishing a state religion and prohibits it from favouring one faith over another.

In the three recent rulings, the court decided that government actions intended to maintain a separation of church and state had instead infringed separate rights to free speech or the free exercise of religion also protected by the First Amendment.

But, as liberal judge Sonia Sotomayor wrote in the Maine case, such an approach “leads us to a place where separation of church and state becomes a constitutional violation”.

Opinions vary over to how much flexibility government officials have in allowing religious expression, whether by public employees, on public land or by people during an official proceeding.

Those who favour a strict separation of church and state are concerned that landmark Supreme Court precedents, including a 1962 ruling that prohibited prayer in public schools, could be imperilled.

“It’s a whole new door that [the court] has opened to what teachers, coaches and government employees can do when it comes to proselytising to children,” said Nick Little, legal director for the Centre for Inquiry, a group promoting secularism and science.

Lori Windham, a lawyer with the religious liberty legal group Becket, said the court’s decisions would allow for greater religious expression by individuals without undermining the establishment clause.