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The Supreme Court building in Washington, D.C. (J. David Ake / AP)

Is the Supreme Court Killing Secularism?

Sonali Kolhatkar

The Supreme Court this week made a series of decisions that challenge the central tenet of secularism in the nation: the separation of church and state.

First and most shockingly, the nine justices unanimously handed Donald Trump a victory on his controversial Muslim ban. Justices decided to let parts of the ban take effect until the court takes the case up in the fall.

Second, the court agreed to hear the case of a Colorado baker who wants the right to refuse service to a gay couple on the basis of his Christian convictions.

And third, the court ruled in favor of Trinity Lutheran Church in Missouri receiving state tax funds to restore a playground on its property. In making this ruling and taking up the other two cases, the court is strongly signaling that it takes seriously the demands of a fanatical Christian evangelical movement that seeks domination over American life.

Trump, whose Muslim ban had been stymied in the lower courts, was elated at the high court’s decision, tweeting, “Very grateful for the 9-O decision from the U. S. Supreme Court. We must keep America SAFE!”

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, explains what happened in an interview, saying, “The Supreme Court is moving more and more in an ultra-conservative direction” and that Trump appointee Neil Gorsuch has proven he is “even more conservative than his predecessor, the late Justice Antonin Scalia.” But Gorsuch was joined by all eight of his fellow justices, including liberals Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, in allowing a narrower version of the ban to take effect and deciding to hear the case.

“They did not have to do this,” Lynn points out. “They did not have to go even this far.” He believes the justices will realize that the ban is “designed to hurt Muslims and help Christians.”

Surely the court could have simply decided to rule on the case without allowing for its partial implementation. But in doing what it did and doing so unanimously, the justices have given Trump their symbolic stamp of approval on one of the ugliest orders issued by the new president—one that lower-court judges have found to be in clear violation of the Constitution.

If Trump’s recent decision to not celebrate Eid al-Adha—the end of Ramadan—at the White House was a signal to the Islamophobes among his base, then the Supreme Court decision shows that yet another branch of the government affirms their hate.

The ban is not being implemented exactly as Trump envisioned. It will apply only to new visa applicants from six specified Muslim countries who seek entry to the U.S. and do not have a “bona fide relationship” with someone in the country. The test that border agents and embassy staff will apply to potential visitors is likely to result in a repeat of the confusion and chaos that erupted at U.S. airports after the ban was first announced, when many Americans showed their disgust with protests and demonstrations.

How can the Supreme Court’s liberals, seeing the widespread opposition to the ban, justify signing off on it? How can they undermine the rights and well-being of a religious minority over the unjustified fears of Trump’s largely white, right-wing base?

In deciding to take up the case against Colorado baker Jack Phillips, who refused service to a gay couple, the court indicated that it will consider putting the rights of Christians over the LGBTQ community as well. Every lower court in Colorado affirmed that the baker had illegally discriminated against Dave Mullins and his husband, Charlie Craig. As Lynn told me, “The religious right views this case as an enormously significant matter.” The right-wing, Christian organization Alliance Defending Freedom has thrown its weight behind Phillips, using terms like “religious freedom” to defend his homophobia. “This particular baker admitted that he had made a ‘wedding cake’ for two dogs, and all of a sudden, he’s now concerned about the terrible disruption to marriage that is caused by two men getting married,” Lynn observes.

There was a time in the U.S.—not too long ago—when businesses refused to serve African-Americans. Just as they do today, conservatives back then cited religious freedom to justify their bigoted behavior. Lynn draws the historical parallels, saying, “There were a lot of preachers on big, powerful, 50,000-watt radio stations who were, among other things, citing the book of Genesis and saying that ‘God separated the light from the darkness’ to prove that God’s intended arrangement was for segregation of the races.” If courts ruled that segregation on the basis of religious conviction was wrong then, one wonders why anti-LGBTQ bigotry is justifiable now.

The Supreme Court has issued rulings in favor of LGBTQ rights in the recent past, including this week, when it ruled for the rights of mothers in same-sex relationships (Gorsuch joined Justices Samuel Alito and Clarence Thomas in dissenting), so it is possible it may rule in favor of human rights over Christian fears when it decides this case.

The third instance this week in which the Supreme Court blurred the lines between church and state—quite literally—was in a ruling in favor of Trinity Lutheran Church in Columbia, Mo. The church wanted to access state funds to refurbish its playground, which is used by children who attend its preschool—a school that, in the words of Trinity Lutheran, “incorporates daily religion and developmentally appropriate activities in a preschool program.” When the state refused, on the grounds that the use of state funds violated state laws of church-state separation, the church sued. Although Missouri’s governor eventually subverted those rules and granted the church the tax funds, the Supreme Court decided to insert itself into the mix and take up the case, ruling in the church’s favor.

While it sounds innocuous for a church to use state funds to fix up a playground, the court’s ruling now sets a dangerous precedent. Lynn considers it “a really terrible ruling” and “portends very bad things for the future of funding.” Betsy DeVos, Trump’s head of the Department of Education and a strong proponent of state funding for religious schooling, is celebrating this ruling. But Lynn, an ordained minister in the United Church of Christ, says, “If your children are potentially at risk in your church or on your church’s playground, it’s your responsibility to make it safe,” not the state’s.

If the religious institution at the heart of this Missouri incident were a mosque rather than a church, can we imagine the Supreme Court making such a ruling?

The subtext of all these cases is that Christian evangelical conservatives see the U.S. as a white, Christian nation, and therefore push the idea of “religious freedom” over the rights and liberties of nonwhite, non-Christian Americans. Meanwhile, right-wing conservative groups like Act for America create a false narrative about Muslims spreading sharia—Islamic law derived from the Koran—and generate hysteria over a nonexistent threat.

Christianity appears to be the exception to the church-state separation rule. Given our current political atmosphere, the United States is vulnerable to propaganda that favors the rights of Christians over Muslims (in particular), threatening the very notion of secularism. Now more than ever, we need to embrace the idea that the state is entirely separate from the church and other religious institutions. While our Constitution rightfully protects religious freedom, it does not do so at the expense of equal rights. Unless we as a society are comfortable undermining our rights in favor of the demands of any and all religions, the Supreme Court should stop promoting one religion over all others.

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Sonali Kolhatkar

Sonali Kolhatkar

Sonali Kolhatkar is a columnist for Truthdig. She also is the founder, host and executive producer of "Rising Up With Sonali," a television and radio show that airs on Free Speech TV (Dish Network, DirecTV, Roku) and Pacifica stations KPFK, KPFA, and affiliates. She is the former founder, host and producer of KPFK Pacifica’s popular morning drive-time program “Uprising." She is also the co-director of the Afghan Women's Mission, a U.S.-based non-profit solidarity organization that funds the social, political, and humanitarian projects of RAWA. She is the author, with James Ingalls, of "Bleeding Afghanistan: Washington, Warlords, and the Propaganda of Silence" (2006).

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