Just How Supreme is the Supreme Court?

By Ed Buckner | 24 February 2023
Letters to a Free Country

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About the Friday Freethought Perennials in general: This subset of my blog is to answer questions, nearly always already answered by me and by many others but posed again and again—over many years and in many places—on freethought, atheism, secular humanism, secularism/church-state/”This is a Christian Nation,” and similar topics. These answers are mostly not intended to be original analyses, breaths of fresh air, so much as just putting a whole series of things on the record (I’d say “forever,” except I know better). One source for many of these answers is the 2012 Prometheus Books book by me and my son (Michael E. Buckner), In Freedom We Trust: An Atheist Guide to Religious Liberty. It’s available in many libraries and pretty readily in the used book after-market. I’ll cite writings of others that answer these things in more depth if I’m aware of them when I post these.

A US Supreme Court Justice (David Josiah Brewer) declared in an 1892 Supreme Court case, Church of the Holy Trinity v. United States, that the US is a “Christian Nation.” Who could argue with that? It’s the supreme law of the land and it’s settled, right?

In the same sense that these matters are now supreme, settled, fixed, right?—

[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

and

… the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.

and

Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment — even though the physical facilities and other “tangible” factors of white and Negro schools may be equal.

and

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.

and

… independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

and

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

These and many more examples of statements made by the US Supreme Court as part of official decisions declared by the Court are not likely to be statements seen now as true or reliable universally (even by all judges). (Aside from Church of the Holy Trinity [1892], the above statements come from Dred Scott v. Sandford [1857], Plessy v. Ferguson [1896], Brown v. Board of Education [1954], Roe v. Wade [1973], Citizens United v. FEC [2010], and Obergefell v. Hodges [2015].) You may think, as I do, that some of these statements are true and others not, but some of them directly contradict others of them, so no one can think they are all true.

It is therefore quite clear that merely because a US Supreme Court decision states something, that fact does not, by itself, mean the statement is true.

What power does the United States Supreme Court have then? Immense power. The power to require racial integration of public schools, the power to require States to permit abortions—and then the power to reverse that. The power to require States to recognize marriages of people of different races or of the same sex. The power to declare that “Negroes” have no rights that white people are bound to honor and later, that separate but equal facilities are all that is needed. But not unlimited or permanent power and not power derived from vague conclusions of opinion. The power the Court has, whether used wisely or correctly or not, comes from the US Constitution and, ultimately, from “We the people”—the sole authority invoked in the Preamble to the Constitution. (As to the impermanence of Court decisions, those decisions can be changed because of civil war or popular upheaval, by amendment or by reversals from the Court itself—extraordinarily difficult to bring about, though all derived from the Constitution and the people.)

But what of the truth of what Justice David Josiah Brewer wrote in 1892, that the United States is a “Christian nation”? Brewer described a long list of pre-constitutional history and events to shore up his point, and he later (1905) wrote a short book on the subject that made clear he was making a limited, cultural (not constitutional or legal) claim.

Rob Boston addressed this 30 years ago in his fine book, Why the Religious Right is Wrong: About Separation of Church & State (1993). And even then, as Boston pointed out, Religious Right activists were over-claiming the words of the Brewer decision.

Many, many ardent Christians, seemingly especially preachers and leaders hungry for power and donations, have cited Brewer’s claim as proof that our origins and beliefs are Christian, if not that Christianity is the established religion or that it once was. A recent example along these lines came from a 15 February (2022) “Patriot’s Daily Devotional” by Richard G. Lee of Atlanta—

If people like Richard Lee are only saying that they think the US should in some sense be Christian or that it’s just demographically true, no one can really deny such people the right to hold such an opinion, however much one may disagree. But Lee, at least, seemed to be arguing for more than that, for he prominently quoted a Bible verse: “They were unfaithful to the God of their fathers”—1 Chronicles 5:25. That suggests that a betrayal has happened, that Americans now are being “unfaithful” not just to Lee’s religious preferences, but to the intent of the founding fathers. If that is what he is claiming, that is not factual—has been discredited for at least three decades—hence my writing about it in my Friday Freethought Perennials subset.

To return to Justice Brewer’s 1892 statement, he was at some pains to make clear then that he and the Court were not declaring the US government, in form or law, to be Christian. He seemed only to assert a received wisdom notion along the lines of “Well, everyone knows America is Christian, so of course the Congress could not have meant to include an English clergyman in this immigration law.” He emphatically did not connect his assertion to language in the Constitution or in federal law or to any other clear and formal authority. That kind of reasoning, as the late conservative Justice Antonin Scalia noted, was unjustified. Scalia, referring to the holding in the Holy Trinity decision as the “prototypical case” in which a judge follows what the judge sees as the intent of the legislature rather than the text of the statute, wrote that this was in opposition to his judicial philosophy of textualism. Brewer essentially declared that his sense of things mattered more than the law or the Constitution—possibly the clearest justification one could claim for judicial activism, so much despised by the Right.

Now imagine that the six Catholic Justices (Sotomayor, Roberts, Thomas, Alito, Kavanaugh, and Barrett) on the current Court, backed by the Catholic President (Biden) declared in a Court decision, “We realize it is not in the Constitution or in our laws, but it is nevertheless clear that all Americans should acknowledge that the one true leader of God’s Church on Earth is Pope Francis in Rome; all Protestant pastors should surely acknowledge the authority of the Pope.” Would Richard G. Lee or anyone else accept this? Do you see how such a thing could actually happen if we allowed the Court—or any government entity—to make religious decisions for US citizens?

It is more than clear from many, many documents that the received wisdom Justice Brewer claimed in 1892 was mistaken. Some of the framers were Christian, some deists or adherents of other religions or philosophies, but they agreed to and helped get passed in 1787-1789 the governing document for the US: a Constitution completely devoid of Christian or anti-Christian doctrine, and they did so quite deliberately.

Let me close with a statement from the Court in 1943 in West Virginia Board of Education v. Barnette, written by Justice Robert H. Jackson and already alluded to this week by Oliver Halle. This is a statement that I honestly think every freedom-loving American should agree with:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Ed Buckner is an American atheist activist who served as president of the organization American Atheists from 2008 to 2010. He served as executive director for the Council for Secular Humanism from 2001 to 2003 and was once the Council’s southern director. He is the author (with Michael E. Buckner) of In Freedom We Trust: An Atheist Guide to Religious Liberty (Prometheus Books, 2012).

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