By EDDIE TABASH
Added: Sun, 03 May 2009 23:00:00 UTC

This article was written especially for RichardDawkins.net.

Many of you have heard my concerns about what would happen if any of the five justices on the United States Supreme Court, who constitute a bare majority in favor of the separation of church and state, were to retire. The main thrust of my worry was that, depending on the results of the 2008 presidential election, such a justice, or justices, would be replaced by a religious right wing president, who would–by way of the replacement–for the first time ever, give the religious right its fifth vote to now declare that government no longer had to be neutral between believers and nonbelievers. A fifth vote for the religious right would mean that American law would be gravely revised to allow all branches of government to favor all religions, collectively, against nonbelief. The only remaining prohibition would be that no branch of government could favor one religion over another.

Such a shift of just one vote would end the required government neutrality in matters of religion that has protected the equality of nonbelievers since 1947. My immediate concern was Justice John Paul Stevens, who turned 89 in April of 2009. Justice Stevens has been a major supporter of church/state separation and one of the indispensable five votes in keeping the four religious right sympathizing justices from obtaining their still-elusive fifth vote. Well, on May 1, 2009, there was a retirement announcement from the Court. It was not from Justice Stevens but from Justice David Hackett Souter, 20 years younger than Stevens. The retirement of Justice Souter would have also brought about the disaster I feared, had John McCain won the 2008 presidential elections. McCain repeatedly promised to nominate to the Supreme Court, and to the lower federal courts, only those people most likely to be religious conservatives. Souter was another one of the indispensable five votes that preserved church/state separation.

However, it appears that we are safe in terms of the likelihood that the replacement justice will probably be a “wash” on church/state separation. President Obama has shown a lucid understanding of the religion clauses of the First Amendment. We can now expect a nominee that, if confirmed, will uphold the principle of government neutrality in matters of religion, as opposed to the religious right view that government can side with all religions, collectively, against nonvelievers. There is always some danger that a new justice, safely ensconced on the Court for life, could sadly surprise the appointing president. In the case of Justice Souter, himself, this turned out, luckily for us, to be the case. In 1990, he was presented to then president, George Bush, Sr., as a reliable religious right vote. Once on the Court, Souter became a severe disappointment to the theocratic right and assumed the role of an excellent scholar in presenting the historical basis for the principle of government neutrality.

His display of this scholarship came within two years of his joining the Court. In the 1992 case of Lee v. Weisman, 505 U.S. 577, the Court, again by a bare five to four majority, struck down even nonsectarian prayer at public high school graduation ceremonies, anywhere in the United States. Souter wrote a magnificent concurring opinion in which he demonstrated how the most historically accurate reading of the enactment of the Establishment Clause pointed in favor of government neutrality in matters of religion as opposed to the non preferentialism in which government is barred only from favoring one faith over others, 505 U.S., pages 609-631. Reading this concurring opinion by Justice Souter, right next to the dissenting opinion of Justice Scalia, is a chilling reminder of the vast difference a single vote can make on the Supreme Court.

It is too early to know who President Obama will actually nominate. The initial Washington gossip has been that the president is not happy that there is only one woman currently on the Court. There is also speculation that the time is ripe for a Democratic president to name the first Hispanic to the Court. Whoever the nominee is, that person does not join the Court unless confirmed by a majority vote in the United States Senate. The Senate, though, has a procedural mechanism known as the “filibuster.” This is where any senator can continue to speak against a nominee, or against a piece of legislation, endlessly, unless those who want the issue to come up for a full vote can muster 60 votes. Once there are 60 votes, the filibuster is terminated by what is known as “cloture.” With the recent defection of the long-serving Republican senator from Pennsylvania, Arlen Specter, to the Democratic Party, there are now presumably 59 reliable votes to end a filibuster. Thus, in order to ensure cloture, at least one of the two moderate Republican senators from Maine, Susan Collins or Olympia Snowe, would have to join in any filibuster-ending vote.

However, if the Minnesota Supreme Court–and possibly the federal courts–can resolve the still-pending disputed senate election in that state; and if Democrat Al Franken has indeed successfully unseated incumbent Norm Coleman, there will then be 60 Democrats in the Senate to terminate a filibuster, whether or not any Republican senators join in.

If a nominee is chosen who draws the ire of the religious right, the first thing all who read this, who also live in the United States, must do is to contact both your state’s United States senators and urge them to support the president’s choice. The first retirement of one of “our” justices has occurred. We must now make sure that he is replaced by someone who will preserve his tradition of support for the continued vitality of the separation of church and state.


Eddie Tabash is a Los Angeles area lawyer who chairs the Legal Committee of Americans United for Separation of Church and State and the First Amendment Task Force of the Center for Inquiry and the Council for Secular Humanism.

TAGGED: LAW, MORALITY, POLITICS