Erwin Chemerinsky is Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law. He wrote this on the SCOTUSBlog.
The Court after Scalia: The 2016 Election and the Fate of the Wall separating Church and State
Without a doubt, the 2016 presidential election will determine the Supreme Court’s approach to the Establishment Clause for years to come. Since 1960, seventy-eight years old is the average age at which a Justice has left the bench. On January 20, 2017, when the next president is inaugurated, there will be three Justices seventy-eight or older: Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer. The next president, of course, also may have Justice Antonin Scalia’s seat to fill. Especially if the next president serves two terms, he or she likely will have several seats to fill on the Court. These Justices will determine the fate of such issues as the constitutionality of prayers in public schools, of religious symbols on government property, of standing to challenge government support for religion, and of government aid to parochial schools.
In 1947, when the Supreme Court in Everson v. Board of Education held that the Establishment Clause applies to state and local governments, all nine Justices accepted the view that the provision was, in the words of Thomas Jefferson, meant to create a “wall of separation between church and state.” This perspective, which I share, is that as much as possible, government should be secular. The place for religion is in the private realm of our lives, in our homes, businesses, and places of worship.
Obviously, there cannot be total separation of church and state. If government did not provide basic services, like police and fire to religious institutions, that would raise serious issues concerning free exercise of religion. But the goal is that religion should be kept out of government and government should be kept out of religion as much as possible.
Simply put, a Trump victory and Trump nominees to the Supreme Court would obliterate any notion of a wall separating church and state. As this is contemplated, it is important to keep in mind the words of Justice Sandra Day O’Connor: “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate . . . . Why would we trade a system that has served us so well for one that has served others so poorly?”
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