Martin Schram: Supreme Court’s prayer ruling reflects conservative activism

05/09/2014 12:00 AM

05/08/2014 5:24 PM

Sometimes being a U.S. Supreme Court justice is very hard work.

After all, justices are required to divine just what the founders really meant back when they wrote the Constitution in an age when guns meant muskets and mass communication meant posters nailed to posts – and then apply it to today’s high-tech world as a true and faithful justice.

But other times, being a Supreme Court justice shouldn’t be hard work at all. Not even heavy lifting.

Because occasionally justices can make use of documents in which the founders explain what they were really thinking and meaning.

If conservatives really wanted to be strict constructionists, this would be an invaluable tool. But when conservatives want to be political activists, they have been liberally discarding such inconveniences as intent and even precedence. As in a Supreme Court ruling Monday that was out of synch with what the court’s conservative majority had to know the framers wanted.

In a sharply divided 5-4 vote, the court ruled that legislative assemblies such as town councils can start their sessions with prayers that regularly follow the precepts of one religion, such as Christianity. Invoking Jesus Christ and the Resurrection is OK, too.

The decision that started in the small upstate town of Greece, N.Y., may well have set thoughtful minds boggling throughout the land. It probably started one body whirling beneath its famous gravestone in the Virginia countryside at Monticello.

The Constitution’s First Amendment begins with what has become commonly referred to as the “establishment clause” – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” But Thomas Jefferson wisely understood the importance of leaving no doubt about the intentions of the framers. And so, on Jan. 1, 1802, as America’s third president, Jefferson wrote his historic letter to the Danbury Baptist Association in Connecticut. In it, Jefferson carefully used the “separation of church and state” phrase that he figured would leave no doubt, for all time, in learned minds.

Fast-forward a couple of centuries. When I was in fourth grade my family moved to Florida. My new public school there told me I had to read passages from the King James Bible and bow my head in prayers that evoked Jesus – even though that was not my family’s religion. I didn’t want to make a scene or advertise that I must be different, so I never protested aloud, but I felt an inner shame.

In Greece, N.Y., from 1999 to 2007, every town hall meeting reportedly began with a Christian prayer, which apparently was fine with the court’s five conservative activists. Justice Anthony Kennedy emphasized in the majority opinion that, after all, the town council didn’t blatantly intimidate non-Christians. Justice Clarence Thomas went further than his majority colleagues, questioning whether the establishment clause even applies to states or local bodies at all. Maybe only the national government cannot establish a national religion, he opined. But states and localities can?

The reasoning process of the conservative majority (all five are Catholics) is nothing short of horrific; they just don’t get how intimidation happens. The four dissenters (three are Jewish, one is Catholic) understood the dangers of silent religious intimidation. It can be strong enough to shatter the wall of separation between church and state, built brick by brick by founders who expected it would forever make America special.

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