(SCOTUS) Guns, Abortion, Religion (Subverting the Public Sphere)

Our moment of madness in the United States of America lies in the sudden massive churn against liberal-social order after a long pre-meditated buildup going back decades. Of a whole piece are the more recent Trump attempted-coup on January 6 and the successful Trump-McConnel insurrection at the Supreme Court, keeping Garland off the Court and replacing him with Gorsuch, followed by Kavanaugh and Coney Barrett to add onto the revanchist right represented by Thomas and Alito. Part of the same anti-liberal warp and woof of unchecked ultra-conservative Christian power at the Supreme Court are extremely permissive rulings about guns and Christian prayer in school  + extremely restrictive rulings against privacy and the reproductive liberty for women. The moment is marked by a legal lawlessness that eviscerates boundaries between public and private life. The Supreme Court renders the public sphere safe for no one: women, racial minorities, and non-Christians especially.

Academic Religious Studies in the North America still generates a lot of talk about how liberalism misconstrues religion because it seeks to restrict religion to the private sphere. This mis-construal is twofold. First, neither religion nor the private sphere is neither never not social nor autonomous and set apart, not even in liberal society. American liberal legal theory does not necessarily reject the free and reasonable expression of religion from the public sphere. Second, society or the public sphere is much broader than the narrower domain of the political sphere. The public sphere is better maintained for everyone when religion is limited to its own distinct social competence, kept far from the circus of political life. What the recent SCOTUS rulings on guns, abortion, and prayer more than reveal is the precarity of the larger public good and the preciousness of privacy along with other liberal things like individual dignity and bodily autonomy. What these rulings underscore is that the privacy and the right to be left alone by religious bullies in the public sphere are hard fought social goods.

The ruling by the conservative majority of the Court are based on a fiction. This is the notion that rulings are meant to protect the interests of peaceable American citizens who go about their business presenting no threat to the public good embedded in securing the private liberties and personal autonomy of other people. In each of these three cases, the liberal dissent is focused on the broad and destructive social impact of the majority. In liberal legal theory, there is a history and tradition of expanding rights. Unenumerated constitutional rights have their own origin and coherence, bundled up together over time. The conservative majority rips up a half century and more of legal traditions, overturning in an arbitrary way rules and rule-based precedent. Especially lawless is the sudden inversion of boundaries meant to secure and protect public safety, privacy and autonomy, and the relation between religion and state. The bald coherence in conservative legal practice is to claw back the rights that conservatives reject (reproductive freedom and personal autonomy) and to carve out space for the ones that they want to advance (public religion, open carriage of guns in public).

Broadly interested in the public sphere and religion, below are my own non-expert collection of links to and digested material from the rulings with my light annotations in bold:


[The starting point in this particular ruling about the so-called right of unrestricted guns bears upon erasing the private/public distinction that is a cornerstone of liberal order. In radical leftwing anti-liberal thought, “the personal is political.” What we think of is private is always already saturated by politics. Also, in the Marxist tradition, the political sphere is supposed to extend into and supersede the bourgeois space of the private sphere. In the conservative thought represented in the ruling by Justice Thomas, the values and rights particular to the private sphere of the “home,” the right to carry guns there, are extended by legal decision into the public sphere.]

In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. See id., at 627; see also Caetano, 577 U. S., at 411–412. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does. Respondents do not dispute this. See Brief for Respondents 19. Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.

[For all the talk about “history” and “tradition” in originalist legal thinking, Justice Thomas pulls a hat-trick. “Not all history is created equal” constitutes an arbitrary intervention. The tradition in dispute is that gun regulation has a strong basis in the history and traditions that conservative originalists say they hold up as a constitutional principle.]

The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.

[“Terror” has always a factor in legal traditions relating to the public carriage of weapons. The conservative majority on the Supreme Court do not take into account what seems to be the ever present threat of public mayhem provoked by guns and other dangerous weapons. As it continues, the argument by Justice Thomas is based on the idea that open carriage of weapons in public can be peaceable, and that the problem historically, was with concealed carriage of weapons in public. In his concurring opinion, Justice Alito will simply ignore as irrelevant the reality of mass shooting events in this country and points instead to the perceived notion that guns carried in public protect ordinary individual citizens from violence. Justice Kavanaugh in his concurring opinion will try to have it both ways, assuming that nothing in this ruling will affect common sense gun regulation.]

Respondents next direct our attention to three late-18thcentury and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that “no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).14 A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would “publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, his continued violation of the law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn. Acts pp. 260–261. A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra, at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendmentand in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.

[Concluding: Putting the cart before the horse, the Court presumes that bearing weapons in public is a constitutional right not subject to any special restrictions.]

The constitutional right to bear arms in public for self defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self defense.

Breyer dissent

[In his dissent, Justice Breyer points to the scourge of gun violence in this country. He argues that history should not be the sole basis on which to base legal decisions, as opposed to a more common sensical appeal to weighting means in relations to ends]

The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives (its 26 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN BREYER, J., dissenting “ends”) against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.

[Justice Breyer notes the Court’s history-only approach to deciding law is arbitrary and inconsistent]

Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described above. The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular. The Court spends more than half of its opinion trying to discredit this tradition.


[The starting point for the majority ruling written by Justice Alito is morality, not law as such. The argument is sustained by and will conclude on the notion of a fetal right to personhood. The argument is in bad faith. The Court is very invested in claims regarding fetal personhood even as it claims it has no intention to weigh in on that issue.]

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.

[In the view of the conservative majority, history and liberty are key to any decision relating to the extension of rights and liberties beyond the original intent of the founding framers of the Constitution]:

“Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.”

[The Court seeks to throw decisions back to the states, even as it argues against the notion that the autonomy of women represented by the right to abortion is an “entrenched” constitutional right. In the view of Justice Alito, autonomy is too general a notion all kinds of vice like drug use, prostitution “and the like.” Unlike the rights to contraception and same-sex intimacy and marriage, restricting abortion is allegedly different because at stake in abortion destroys “potential life,” or the life of an “unborn human being.” In his concurring opinion, Justice Thomas will argue that restricting the right to abortion opens the door to restricting the rights to contraception and same sex marriage.]

“Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30. (3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.                                                                                                                                                                            

[Immediately on the heels of the moral argument above, the Court introduces a sharp, sudden, declarative swerve in the argument now overturning Roe and Casey. The rhetorical suddenness reflects the very real violence at the heart of this ruling.]

We hold that Roe and Casey must be overruled. The Constitution makes no reference to aortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

[Again, with reference to history, the Court asserts that liberty is not at issue in overturning Roe. Unlike contraception and same sex intimacy and marriage, abortion is held to be different because of fetal life. Justice Thomas in his concurrent ruling suggests a radically different view. The Court claims these other liberties remain secure and protected. But this claim is hard to believe given what is at best the prevarication of Justices Gorsuch, Kavanaugh, and Coney Barrett at their Senate confirmation hearings regarding their respect for legal precedent in relation to Roe and Casey.]

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

[Justice Alito establishes the interest of prenatal life over impact on women’s lives and liberty; fetus has the right to live. Not to be taken seriously is the claim that the opinion overturning Roe and Casey is “not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” Very clearly, the potential form of prenatal life trumps women’s actual lives.]

That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life. The dissent repeatedly praises the “balance,” post, at 2, 6, 8, 10, 12, that the viability line strikes between a woman’s liberty interest and the State’s interest in prenatal life. But for reasons we discuss later, see infra, at 50–54, 55–56, and given in the opinion of THE CHIEF JUSTICE, post, at 2–5 (opinion concurring in judgment), the viability line makes no sense. It was not adequately justified in Roe, and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus. Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’”

[The Court now proceeds to argue bluntly against precedent as a legal basis upon which to decide the right to an abortion. It ignores in a crude way a half century of legal precedent protecting this right]

Stare decisis, the doctrine on which Casey’s controlling of the Court opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority.

[To stay on the right side of the Equal Protection Clause of the 14th Amendment, this strange argument that overturning the right to a woman’s reproductive autonomy is “not sex based” discrimination because only women undergo this medical procedure.]

We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. See Brief for United States as Amicus Curiae 24 (Brief for United States); see also Brief for Equal Protection Constitutional Law Scholars as Amici Curiae… Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications.The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974). And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–274 (1993) (internal quotation marks omitted). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.

[According to the Court, “liberty” as protected in the 14th Amendment is not at issue here because liberty is a capacious term. The argument sounds like a form of ethical relativism]

“Liberty” is a capacious term…. In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution…. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.”


Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight

[A glib concluding note paraphrasing and adopting as the view of the Court claims by Anti-Choice activists regarding new gains in social support of women and an appreciation of fetal life. This seems to be the final substantive word before Justice Alito proceeds to argue against the dissent]

 Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.

Justification for overthrowing precedent is based on the argument that Roe and Casey were instances of bad law and badly reasoned law

No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___–___ (2018) (slip op., at 34–35); Ramos v. Louisiana, 590 U. S. ___, ___–___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 7–9). In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.  

[Again, undermining the public sphere, Justice Alito simply dismisses as an extraneous the notion that overturning the right to abortion will undermine the public legitimacy of the Supreme Court]  

But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work…Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe “inflamed” a national issue that has remained bitterly divisive for the past half century. Casey, 505 U. S., at 995 (opinion of Scalia, J.); see also R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (Roe may have “halted a political process,” “prolonged divisiveness,” and “deferred stable settlement of the issue”). And for the past 30 years, Casey has done the same. Neither decision has ended debate over the issue of a constitutional right to obtain an abortion

Dissent, Breyer, S, Kagan: [keyword: what does Const. “safeguard” or “guarantee” (not enshrine as such). State “coerce/coercion” “women” “lives.” Constitutional right to abortion embedded in a body of other rights re: privacy]

The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all…The majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs. Women have relied on the availability of abortion both in structuring their relationships and in planning their lives….We start with Roe and Casey, and with their deep connections to a broad swath of this Court’s precedents. To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true. After describing the decisions themselves, we explain how they are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations. The majority does not wish to talk about these matters for obvious reasons; to do so would both ground Roe and Casey in this Court’s precedents and reveal the broad implications of today’s decision. But the facts will not so handily disappear. Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. Those legal concepts, one might even say, have gone far toward defining what it means to be an American. For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people…..For now, our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents…..In short, the majority does not save judges from unwieldy tests or extricate them from the sphere of controversy. To the contrary, it discards a known, workable, and predictable standard in favor of something novel and probably far more complicated. It forces the Court to wade further into hotly contested issues, including moral and philosophical ones, that the majority criticizes Roe and Casey for addressing.

[Social fabric and history] And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

Reliance: The reasons for retaining Roe and Casey gain further strength from the overwhelming reliance interests those decisions have created. The Court adheres to precedent not just for institutional reasons, but because it recognizes that stability in the law is “an essential thread in the mantle of protection that the law affords the individual.” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U. S. 147, 154 (1981) (Stevens, J., concurring). So when overruling precedent “would dislodge [individuals’] settled rights and expectations,” stare decisis has “added force.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991). Casey understood that to deny individuals’ reliance on Roe was to “refuse to face the fact[s].” 505 U. S., at 856. Today the majority refuses to face the facts. “The most striking feature of the [majority] is the absence of any serious discussion” of how its ruling will affect women. Ante, at 37. By characterizing Casey’s reliance arguments as “generalized assertions about the national psyche,” ante, at 64, it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause. In Casey, the Court observed that for two decades individuals “have organized intimate relationships and made” significant life choices “in reliance on the availability of abortion in the event that contraception should fail.”

Legitimacy: Justice Jackson once called a decision he dissented from a “loaded weapon,” ready to hand for improper uses. Korematsu v. United States, 323 U. S. 214, 246 (1944). We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.


The case involved a football coach in Texas who insisted on leading prayer on the fifty yard line after games and having students and community members join him. Playing loose with the facts and constitutional principles, Justice Gorsuch construes the prayer of Coach XX as “quiet and private” when it was nothing of the sort, as per here     

Ruling in favor of public prayer under the guise that a case that concerned very public prayer by a school official during a school function, the Court has to gut a long-standing rule used to determine when an action violates the Establishment Clause of the First Amendment. This is the so-called Lemon Test, which the majority views as “abstract.” Cited below, that test is a reasonable rule of thumb that decides that the Establishment Clause has been violated “whenever a hypothetical reasonable observer could conclude the government endorses religion.”

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ ” Lemon: “whenever a hypothetical reasonable observer could conclude the government endorses religion” (see the ruling) .  Textual reading: “It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Amdt. 1. A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes,

[How to identify a violation to the Establishment Clause]

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’”

Dissenting opinion; Justice Sotomayor argues against overturning Lemon and the abuse of history by “amateur historians” on the bench.]

For decades, the Court has recognized that, in determining whether a school has violated the Establishment Clause, “one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the [practice], would perceive it as a state endorsement of prayer in public schools.” Santa Fe, 530 U. S., at 308 (internal quotation marks omitted). The Court now says for the first time that endorsement simply does not matter, and completely repudiates the test established in Lemon, 403 U. S. 602. Ante, at 22–24.

Both of these moves are erroneous and, despite the Court’s assurances, novel. Start with endorsement. The Court reserves particular criticism for the longstanding understanding that government action that appears to endorse religion violates the Establishment Clause, which it describes as an “offshoot” of Lemon and paints as a “‘modified heckler’s veto, in which . . . religious activity can be proscribed’” based on “‘“perceptions”’” or “‘“discomfort.”’” Ante, at 21–22 (quoting Good News Club v. Milford Central School, 533 U. S. 98, 119 (2001)). This is a strawman. Precedent long has recognized that endorsement concerns under the Establishment Clause, properly understood, bear no relation to a “‘heckler’s veto.’” Ante, as 22. Good News Club itself explained the difference between the two: The endorsement inquiry considers the perspective not of just any hypothetical or uninformed observer experiencing subjective discomfort, but of “‘the reasonable observer’” who is “‘aware of the history and context of the community and forum in which the religious [speech takes place].’” 533 U. S., at 119. That is because “‘the endorsement inquiry is not about the perceptions of particular individuals or saving isolated non adherents from . . . discomfort’” but concern “‘with the political community writ large.’” Ibid. (emphasis deleted).

[The notion that liberal justices want to purge religion from the public sphere is a red-herring. Justice Sotomayor provides guidance on reasonable accommodation of religion and religious expression in the public sphere while paying special attention to schools in cases that touch upon religion and state.]

Given this concern for the political community, it is unsurprising that the Court has long prioritized endorsement concerns in the context of public education. See, e.g., Santa Fe, 530 U. S., at 305; Wallace, 472 U. S., at 60–61; Edwards, 482 U. S., at 578, 593; see also Lee, 505 U. S., at 618–619 (Souter, J., concurring) (explaining that many of the Court’s Establishment Clause holdings in the school context are concerned not with whether the policy in question “coerced students to participate in prayer” but with whether it “‘convey[ed] a message of state approval of prayer activities in the public schools’” (quoting Wallace, 472 U. S., at 61)).4 No subsequent decisions in other contexts, including the cases about monuments and legislative meetings on which the Court relies, have so much as questioned the application of this core Establishment Clause concern in the context of public schools. In fact, Town of Greece v. Galloway, 572 U. S. 565, which held a prayer during a town meeting permissible, specifically distinguished Lee because Lee considered the Establishment Clause in the context of schools. 572 U. S., at 590 (plurality opinion).

Paying heed to these precedents would not “‘purge from the public sphere’ anything an observer could reasonably infer endorses” religion. Ante, at 22. To the contrary, the Court has recognized that “there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students.” Lee, 505 U. S., at 598–599. These instances, the Court has said, are “often questions of accommodat[ing]” religious practices to the degree possible while respecting the —————— 4 The Court attempts to recast Lee and Santa Fe as solely concerning coercion, ante, at 29–30, but both cases emphasized that it was important to avoid appearances of “ ‘state endorsement of prayer in public schools.’ ” Santa Fe, 530 U. S., at 308; see Lee, 505 U. S., at 590 (finding that the “degree of school involvement” indicated that the “prayers bore the imprint of the State”). Cite as: 597 U. S. ____ (2022) 27 SOTOMAYOR, J., dissenting Establishment Clause. Id., at 599.5

In short, the endorsement inquiry dictated by precedent is a measured, practical, and administrable one, designed to account for the competing interests present within any given community. Despite all of this authority, the Court claims that it “long ago abandoned” both the “endorsement test” and this Court’s decision in Lemon 403 U. S. 602. Ante, at 22. The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn., 588 U. S. ___ (2019) to support this contention. That plurality opinion, to be sure, criticized Lemon’s effort at establishing a “grand unified theory of the Establishment Clause” as poorly suited to the broad “array” of diverse establishment claims. 588 U. S., at ___, ___ (slip op., at 13, 24). All the Court in American Legion ultimately held, however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts. 588 U. S., at ___ (slip op., at 16); see also id., at ___– ___ (slip op., at 16–21) (discussing at some length why the Lemon test was a poor fit for those circumstances). The only categorical rejection of Lemon in American Legion appeared in separate writings. See 588 U. S., at ___ (slip op., at 1) (KAVANAUGH, J., concurring); id., at ___ (slip op., at 6) —————— 5

[Justice Sotomayor posits the difference between the reasonable accommodation of religion versus public mayhem, a point obscured by the conservative majority]

The notion that integration of religious practices into the workplace may require compromise and accommodation is not unique to the public employer context where Establishment Clause concerns arise. The Court’s precedents on religious discrimination claims similarly recognize that the employment context requires balancing employer and employee interests, and that religious practice need not always be accommodated. Surely, an employee’s religious practice that forces a school district to engage in burdensome measures to stop spectators from rushing onto a field and knocking people down imposes much more than a de minimis burden.

[Justice Sotomayor defends the Lemon rule.]

The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so. Lemon summarized “the cumulative criteria developed by the Court over many years” of experience “draw[ing] lines” as to when government engagement with religion violated the Establishment Clause. 403 U. S., at 612. Lemon properly concluded that precedent generally directed consideration of whether the government action had a “secular legislative purpose,” whether its “principal or primary effect must be one that neither advances nor inhibits religion,” and whether in practice it “foster[s] ‘an excessive government entanglement with religion.’” Id., at 612–613. It is true “that rigid application of the Lemon test does not solve every Establishment Clause problem,” but that does not mean that the test has no value. American Legion, 588 U. S., at ___ (slip op., at 1) (KAGAN, J., concurring in part).

[On the abuse of history by the conservative Court.]

Upon overruling one “grand unified theory,” the Court introduces another: It holds that courts must interpret whether an Establishment Clause violation has occurred mainly “by ‘reference to historical practices and understandings.’” Ante, at 23 (quoting Town of Greece, 572 U. S., at 576 (internal quotation marks omitted)). Here again, the Court professes that nothing has changed. In fact, while the Court has long referred to historical practice as one element of the analysis in specific Establishment Clause cases, the Court has never announced this as a general test or exclusive focus. American Legion, 588 U. S., at ___–___ (BREYER, J., concurring) (slip op., at 2–3) (noting that the Court was “appropriately ‘look[ing] to history for guidance’” but was not “adopt[ing] a ‘history and tradition test’”). The Court reserves any meaningful explanation of its history-and-tradition test for another day, content for now to disguise it as established law and move on. It should not escape notice, however, that the effects of the majority’s new rule could be profound. The problems with elevating history and tradition over purpose and precedent are well documented. For now, it suffices to say that the Court’s history-and tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal issues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules.

[Concluding thought in the dissent by Justice Sotomayor on religion and religious liberty]:

The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent.

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics. http://religion.syr.edu
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1 Response to (SCOTUS) Guns, Abortion, Religion (Subverting the Public Sphere)

  1. Jon Awbrey says:

    Many thanks! Shared to my Facebook page and Diane Ravitch’s blog …

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