Since 1947 the U.S. Supreme Court Has Legally Institutionalized Discrimination Based Solely on Religion

In 1947 Justice Hugo Black erroneously used extra-constitutional language from one personal letter Thomas Jefferson wrote (among volumes) to redefine the First Amendment’s Establishment Clause. Black argued in Everson v. Board of Education, 310 U.S. 1 (1947) that the government could not “pass laws that aid one religion … (or) aid all religions.” He gave no explanation as to why the government should oppose a policy that positively affects its citizens.

As a result, the language, to “be separate” from religion, evolved into “not being entangled with” religion. In Lemon v. Kurzman, 403 U.S. 602 (1971) the Court added to the First Amendment a three-part condition, known as the Lemon Test, to determine future Establishment Clause rulings. The Lemon Test conditions ask if the subject in question:

  1. Has a secular purpose;
  2. Has the “primary effect” of either “advancing or inhibiting” religion; or
  3. Entails an “excessive entanglement” between government and religion.

Oddly, a court that cannot define “religion,” ruled on religion using non-law for its reasoning, then argued churches (and all things religious) must be separate from society. By the Court’s reasoning, if the government cannot “advance” religion, religion should be uninvolved in every area where the government is involved. And, also for no clear reason, the government can support “secular” causes.

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The Lemon Test in effect, asserts that all laws must have a secular purpose, thereby systematically institutionalizing discrimination against all non-secular views. It also presupposes that religious purposes automatically exclude secular ones, as if they are mutually exclusive from one another, when they are not.

To suggest that the church and state should not be entangled when they already are evidences substandard jurisprudence.

Churches are already and continue to be subject to state laws and borders as well as federal laws and regulations. If what is “religious” is not already entangled by government laws why would there be a need for a Constitutional Amendment, which emphasizes religion as a preeminent freedom?

The government, by its bureaucratic nature, is already entangled in every aspect of society—in order to affect public policy and laws. The very fact that the government is already entangled in every area of life is what prompted the Founders to devise a Constitution to protect citizens from its encroachment. Nine of the first ten amendments to the Constitution specify what the government “shall not” do.

Worse still, the Supreme Court unsuccessfully attempted to define “aid” and “entanglement.” Michael W. McConnell identified the Court’s duplicity in a 1997 American Bar Association Journal article. The Court has held,

“that religious colleges may receive general purpose government grants, but religious high schools may not; that government may subsidize bus transportation to religious schools but not bus rides for their students on field trips; that government may pay for books but not maps or film projectors; that it may reimburse schools for the cost of state-mandated standardized tests but not state-mandated safety maintenance; and that it may pay for diagnostic, but not therapeutic services to children at religious schools.”

As such, the Court continued to cause further confusion. Religion was clearly not separate from public life; the Court continued to rule on cases regarding conscientious objection, contraception, marriage, education, parenting, and even taxation, which it redefined as “penalties.”

Recognizing the litany of problems associated with the Court’s error, Congress passed the Religious Freedom Restoration Act in 1993 and the Court modified the Lemon requirements in 1997. Three new criteria were to be applied when ruling on the issue of “separation.” The Court should consider:

  1. Whether the statue results in governmental indoctrination,
  2. Defines its recipients by reference to religion, or
  3. Creates an excessive entanglement with religion.

Despite these changes, at issue remains what secularists and non-religious advocates prescribe to allow—due to their self-proclaimed generosity—limited freedoms of religious expression, belief, conscience, and worship. Religion, they argue, should be “tolerated” to a certain extant in civil society, but politically, religion does not matter and socially, religion is irrelevant and has no real public consequence.

Yet the vast majority of religions do have public consequences—both constructive and destructive.

What resulted from Court rulings since 1947 was the legally institutionalized religion of secularism and legally institutionalized discrimination based solely on religion—violating the First Amendment’s “Shall Not.”

Five years after Black’s ruling, Justice William O. Douglas warned that America was in danger of “preferring those who believe in no religion over those who do believe.” A decade after Douglas’s warning, Justice Potter Stewart said the Court was moving toward “the establishment of a religion of secularism.” Fifty-five years later their concerns proved correct.

Bethany Blankley

Bethany Blankley is a political analyst for Fox News Radio and has appeared on television and radio programs nationwide. She writes about political, cultural, and religious issues in America from the perspective of an evangelical and former communications staffer. She was a communications strategist for four U.S. Senators, one U.S. Congressman, a former New York governor, and several non-profits. She earned her MA in Theology from The University of Edinburgh, Scotland and her BA in Political Science from the University of Maryland. Follow her @bethanyblankley &

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