The Separation of Church and State: Should the U.S. Supreme Court Play an Activist Role?

What does the phrase “separation of church and state” mean?

It means church and state, as far as possible, are to be separate. The framers of the Constitution did not intend absolute separation. Indeed, complete separation is impossible and undesirable. The “wall of separation” concept is nothing more than a metaphor to the Supreme Court. It has nothing to do with mixing religion and politics. Religion and politics have always intersected in America. The Establishment Clause of the First Amendment means government may not establish a national church, it may not favor one faith over another, and it may not favor or inhibit religion as such.

Has the Supreme Court interpreted the Establishment Clause to mean something the framers of the Constitution did not intend?

Supreme Court Justice William Brennan has said it is not a question of “either/or”—either the text of the Constitution or its contemporary interpretation. Instead, Brennan said, it is “both/and.” You begin with the text, but you have to interpret it to fit the ever-changing legal situation in our time. This understanding of the Supreme Court’s role is time honored. In 1803, Chief Justice John Marshall wrote in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”

Why has this issue become so controversial, pitting the U.S. attorney general against several Supreme Court justices?

Society has changed in 200 years. When the Constitution was written, the new nation harbored scarcely a dozen religious groups. Today, the United States protects the rights of some 3,000 religious bodies. As a result, the application of the First Amendment’s religion clauses needs to be dynamic rather than static. The framers of the Constitution themselves didn’t agree on the application or the meaning of particular constitutional provisions. The Supreme Court is the final arbiter of citizens’ claims against those who make the laws and those who enforce them.

The Supreme Court’s critics say the justices are creating law, and not restricting their actions to arbitration.

As Chief Justice Warren Burger has said, the Supreme Court does not go looking for constitutional questions to answer. Rather, as society changes, constitutional questions are thrust on the Court. Let’s consider some of those changes. The framers of the Constitution did not recognize the rights of women or blacks. Women were not allowed to vote, and blacks were viewed as property. Constitutional amendments solved those problems, but amendments did not address criminal justice issues such as a suspect’s right to be informed of his rights at the time of arrest. Refinements such as that came as a result of citizens appealing to the courts.

What does the phrase “separation of church and state” mean?

Our Founding Fathers understood “an establishment of religion,” mentioned in the First Amendment, to mean a church supported by the state, such as the Church of England. They rejected this idea of preferential treatment of a religion or a church by the federal government. But at the same time, they agreed that Congress should not interfere with any of the established state churches in existence at that time. The colonies had various experiences with state churches, which were in various stages of collapse at the time the Constitution was written.

Has the Supreme Court interpreted the Establishment Clause to mean something the framers of the Constitution did not intend?

Yes. The Supreme Court and lower federal courts have gone far beyond the intentions of the framers. In some instances, the idea of government neutrality toward religion has been transformed into hostility toward religion.

I favor judicial restraint. If the Constitution speaks to a particular issue, the Supreme Court should be bound by the text, and the Court should void or uphold the activity at issue. If the Constitution is silent on an issue, the Court should not go beyond the text or what can be inferred from the text to make new law.

What should be the Supreme Court’s role in our society?

The role of the Court should be limited. In our system of government, all power derives from the people. The Court’s role should thus be as small or as large as the people wish to make it. When this country was founded, the Supreme Court was given a limited role by design. But this role has been expanded greatly over the years, constricting the ability of people to govern themselves. Numerous decisions have diminished the ability of communities to decide for themselves the public moralities they should live by.

What rulings have done this?

The most serious recent one is Roe v. Wade (1973), which struck down 50 state laws on abortion. In that ruling, the Court purported to find a right that does not exist in the Constitution. At the same time, you cannot find in the Constitution a guarantee of the right to life for the unborn. The Constitution does not speak to the issue of abortion. That decision should be left to the people, to be made at the state level, or nationally through legislation or a constitutional amendment.

Would you agree that many Supreme Court rulings have limited the rights of Christians to exercise their faith?

Some rulings appear to limit the rights of some believers, while other rulings appear to mix church and state. During the past three years, the Court has struck down a law authorizing a period of silent prayer in public schools, and it invalidated state and federal programs that sent public school teachers into parochial institutions at taxpayer expense. However, the Court also upheld the erection of nativity scenes on public property and the employment of legislative chaplains at public expense. The Supreme Court is not trying to eliminate religion from public life.

Why do you think judicial activism should be the prevailing philosophy of the nation’s courts?

The way religion has flourished in America is the best test of the wisdom of our judicial system. In no other time and place has religion flourished as it has in the United States. It is paradoxical that that was brought about because of a legal principle separating the institutions of government and religion. The framers had the wisdom to fashion a Constitution with an innate capacity for continual change and adaptability.

Why has judicial activism become so prevalent?

The expanding role of the Supreme Court has resulted from many factors, including the way law is taught and commentary by elites who typically favor a larger role for the courts. Intellectuals have a stake in exercising their own power, and the Court is the natural place for that to happen.

Congress has also contributed to this expanded role. In a sense, we have brought this upon ourselves by asking our elected representatives to make laws that invite more litigants into the courts. Judges often feel compelled to do things for the good of society. A biographer of Earl Warren said the former Supreme Court chief justice did what he thought was good for the country, often without regard for the technicalities of the law.

Why do you think it is important for judicial restraint to be the prevailing philosophy of our courts?

Judicial restraint is more consistent with the idea of self-government. It enables the American people to express their moral and religious views in a manner consistent with basic liberties and our constitutional design. Much of the law from the Supreme Court has impeded the ability of communities to decide moral questions for themselves. I favor judicial restraint, not because it flows from premises that I hold as a Christian, but rather as a political argument. That is the only way it can and should be justified.

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