Thoughts on American Democracy

The most rigorous academic challenge I have ever experienced was a college course on Constitutional Law. It was required for my major and because of its fearsome reputation I put it off as long as possible. The text book itself was forbidding, 1,000 pages with hundreds of pages of footnotes and cross references. We read, studied and discussed the landmark decisions handed down by the Supreme Court from the earliest days of the republic. The course title itself wasn’t exactly accurate. It wasn’t about the Constitution so much as the ways the Court interpreted the constitution in hundreds of cases: Marbury vs. Madison, Plessy vs. Ferguson, Dred Scott, Brown vs. The Board of Education. I learned that American democracy is a work in progress, and that the very nature of the American nation and culture at any given moment is a product, in large measure of the thinking of the nine Justices of the Supreme Court. Created as a balance to the power and authority of Congress and the president, the court theoretically transcends political partisanship. The fact, for better or worse, is that the court reflects the politics of the moment, particularly the opinions and convictions of the president who appointed the individual justices and the legislators who confirmed their appointment. The Court is so critical politically that FDR famously tried, unsuccessfully, to “pack” the court with justices more amenable to his New Deal goals by increasing its size.

Ever since that demanding course in Constitutional Law I have paid close attention to the Supreme Court appointments and decisions. The current court is dominated by five men, each Roman Catholic and their frequent spokesperson, Antonin Scalia, a very conservative catholic. The five were appointed by Republican presidents and have moved the Court, and current Constitutional Law significantly to the right in case after case. In a review of a new book on the Supreme Court in the New York Times (July 6, 2014) Jeff Shesol observes the rightward tilt of the current court in a run of conservative rulings on campaign finance, affirmative action, gun control, abortion, and religion in the public sphere.

Two recent decisions reflect that shift. The First Amendment to the Constitution guarantees and protects freedom of religion and prohibits the making of any law respecting an establishment of religion or impeding the free exercise thereof. The clear intent is not only to guarantee individual freedom to worship and practice religion as one chooses, or not to worship and practice, but also to protect the government and the people from the imposition of anyone’s religion. No state sponsored church here. No church officials distracting government policy. It was so radical at the time that almost no one thought it would work. Conventional wisdom was that the government needed the support and blessing of a church and that the church needed government sponsorship and support to survive. Over the years it has not only worked but worked beautifully for both state and religion.

The boundary between freedom from a coercive religion and the freedom to practice religion as one chooses has always been blurred and troublesome. Should there be prayer and Bible reading in public schools? Should religious symbols be displayed on public property? Should a corporation or a college be granted an exemption from obeying a law because of religious conviction? In the recent Hobby Lobby case the Court agreed that the large corporation need not provide certain contraception methods to its employees despite the dictates of the Affordable Care Act because the corporation’s owner has strong convictions about abortion and reproductive rights. Hobby Lobby appealed to a 1993 law, the Religious Freedom Restoration Act, and the five conservative justices agreed.

In a related case, Wheaton College in Illinois was granted an exception from even having to fill out forms requesting an exemption from following ACA rules for its employees, and again the vote was 5-4.

I disagree with these decisions. It has always seemed to me that the freedom to practice one’s religion, or not, is the most precious, radical characteristic of our unique system of government. And that same freedom restrains me from imposing my religion on others. In these recent cases the Supreme Court appears to be not just letting religious people act out their beliefs, but letting them impose those beliefs on others who might not share them.

Four of the Justices of the Supreme Court and, significantly, all three women, whose own freedom is at stake here, agree.