Supreme Court Clarifies Establishment Clause

Has the U. S. Supreme Court Reversed Itself on
Church-State Matters? A Recent Decision Examined

 

 

by Jerry Bergman, PhD

SCOTUS Rules that Private Is Not Necessarily Religious

The U. S. Supreme Court decision in the recent court case, Carson v. Makin, 596 U. S. (June 21, 2022), rejected the belief that religious instruction in a state-funded private school is “a state establishment of religion.” As a result of this ruling, the state of Maine was required to fund what the ACLU calls religious education at private religious schools as part of its tuition assistance program. The ruling only pays for students to attend private school if their town does not have a public high school.

It appears that the ACLU would prefer that these students have no formal education rather than be exposed to “religious” education. The ACLU, in opposition to the ruling, wrote

The decision marks the first time that the court has explicitly required taxpayers to support a specifically religious activity — religious instruction — and expands the court’s 2020 ruling in Espinoza v. Montana Department of Revenue. There, the court held that the Free Exercise Clause prohibited a state from excluding religious schools from private aid programs “solely because of their religious character.” As Justice Sotomayor observed in dissent, this ruling “leads us to a place where separation of church and state becomes a constitutional violation.”[1]

Which view of the Establishment Clause comports with the Founders’ intent?

The main argument against covering both sides of the evolution debate in the public school classroom has been the claim that this would be a violation of the Establishment Clause. The Establishment Clause refers to the prohibition of a state, such as, for example, Maine, from establishing an official state church. A state church, such as existed in much of Europe and most of the American colonies, was actually part of the state. “Separation of church and state” refers to the state funding official state churches, the details of which depended on the specific state. For example, some  colonies had church attendance rules and, if you violated them, you could be fined or even jailed. All persons paid taxes to support the state church, which was the main source of their income to pay the minister and maintain the church building.

Many colonies also required officeholders or even voters to take a “religious oath” affirming that they adhered to the major tenets of the established state church. The main opposition was those churches competing with the state church, such as the Baptist church. Partly as a result of this pushback, in 1787 the authors of Article 6 of the U. S. Constitution specifically precluded “religious oaths” as a condition for holding national office.

The first clause in the Bill of Rights states that “Congress shall make no law respecting an establishment of religion.”[2] This “Establishment Clause” of the First Amendment clearly prohibited the creation, meaning the establishment, of a state church, when the amendment was ratified in 1791. Conversely, it did not eliminate the established churches in those states where they already existed. If it had attempted to do so, it would have encountered a great deal of opposition.[3] The state churches generally prevailed in the New England states, where the state church was often Congregationalism. In the Southern states the Church of England (Episcopal) generally prevailed. New Hampshire did not abandon its state support of the Congregational church until 1817; Connecticut abandoned it in 1818; and Massachusetts abandoned its state supported Congregational church only in 1833.[4]

Opposition to Creation Based on the Separation of Church and State

A church is defined as “a building used for public Christian worship, a congregation or body or organization of religious believers, or a specific religious denomination such as the Catholic church.”[5] No definition for church that I found even came close to creation material that involves: “a presentation of facts, films, or reading material that documents the scientific problems with evolution.” It is manifestly obvious that presenting scientific evidence against the Darwinian worldview is not establishing a state church. Information is not a church, neither are creationists. They are human beings.

Furthermore, Great Britain does not have the separation of church and state clause as do we in America to use as an excuse to indoctrinate in evolution. Their state church is the Church of England. Nonetheless, they have banned teaching all alternatives to evolution. [6] Only atheistic evolution can be taught. This is obvious in the specific words of the ruling, which states that: “any doctrine or theory which holds that natural biological processes cannot account for the history, diversity, and complexity of life on earth and therefore rejects the scientific theory of evolution” cannot be taught in public schools.

Ironically, in all cases I have been involved in, or consulted in, the courts at all levels have consistently ruled that covering the scientific information against evolution in a public classroom is back-door creationism, thus is the establishment of religion and, consequently, unconstitutional. The recent Supreme Court ruling contravenes at least 200 previous rulings on creation and separation of church and state.[7] Ideally, another Supreme Court case will take the next step and make it clear that classroom instruction in the case against evolution, or even religion, does not violate the Establishment Clause of the U. S. Constitution. Already, the court has ruled that public schools can teach religion, if done objectively, but are not to proselytize. However, covering scientific information against evolution in a public classroom is judged as proselytizing because this information counters evolutionary Darwinism.

Thus, the claim that scientific evidence against Darwinism is unconstitutional, and cannot be taught in public schools, is a perversion of the Free Exercise Clause. Even reading the Bible in school is not by any stretch of the imagination establishing a church, yet it has also been ruled as unconstitutional. This reasoning is commonly used to ban the teaching of information favoring the creation worldview, while allowing the teaching of other competing worldviews. The result is indoctrination into a religious worldview called secular humanism. The issue is very important because American Supreme Court rulings often have ramifications throughout the world. The laws of other nations, especially Western nations, are heavily influenced by our Court’s decisions, and they often openly cite our Court’s rulings to defend their own rulings.

The Supreme Court is fallible

The Supreme Court is the most powerful institution in America. Yet it is fallible, as are all human institutions. The total number of rulings since the Court was established in 1790 runs into the thousands. Although 98 percent still stand, even today, a few rulings were so harmful to society that they were overturned by the Supreme Court itself. Since 1810, fully 232 of its rulings have been reversed by a subsequent U. S. Supreme Court decision.[8] It is obvious that some Supreme Court rulings have been horribly wrong and disastrous, causing enormous suffering.  Three were selected, all which illustrate the effect of rejecting Genesis and accepting the evolution idea, that of racial and eugenic inferiority based on Social Darwinism.

The Court’s Horrible History of Supporting Social Darwinist Beliefs

Among the worst of bad Supreme Court decisions was Dred Scott v. Sandford, 60 U. S. 393 (1857), which held that “black” people were not intended to be included as citizens under the Constitution. Therefore, they could claim none of the rights and privileges secured to citizens of the United States. In this case, the Court ruled that “Negroes” were “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.”[9]

Sadly, the Court, in a 7 to 2 decision, supported the prevailing “scientific” thought of that time by asserting that “Negroes” were an inferior “race,” less-evolved than the Caucasian “race.” Dred Scott was a slave owned by an army physician who had taken him from Missouri, a slave-holding state, into Illinois, where slavery was illegal. When his owner brought him back to Missouri, he [Scott] claimed that, because he had been taken into “free” U. S. territory, he was legally no longer a slave. In 1846, Scott and his wife, aided by anti-slavery lawyers, sued for their freedom and eventually lost in the Supreme Court. This ruling was the law of the land for over a half century.

Many American laws called “Jim Crow” statutes, were based on the racial inferiority belief. Jim Crow was a stereotypically lazy and shiftless Black buffoon, who elicited laughs due to his avoidance of work. Around 1830 white actor Thomas Dartmouth was propelled to stardom for performing minstrel routines (as a white man in blackface) of a dimwitted Black slave he named “Jim Crow.” Rice’s minstrel act was such a massive hit among white audiences that he toured the United States and Great Britain. “Jim Crow” soon became a common derogatory term for Blacks.[10] By 1880 “Jim Crow” referred to race relations in which African and White Americans lived in separate social planes. Almost a century would pass before the Civil Rights Movement could force the reversal of these laws.[11]

In 1896, Homer A. Plessy challenged racist laws by deliberately violating Louisiana’s Separate Car Act of 1890. The 1890 Act required “equal, but separate” train car accommodations for White and non-White passengers based on the superior-inferior race belief. Plessy was an octoroon, a person who was seven-eighths “White” and a mere one-eighth “Black.” He physically appeared 100 percent Caucasian. It was for this reason that he was thought to be an excellent candidate to challenge the existing racist law. Plessy’s attorney, Albion W. Tourgée, correctly argued that the 1890 Separate Car Act was based on the belief in the inferiority of African Americans compared to the superiority of “Whites.”

The Supreme Court ruled that “If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”[12] It took almost another half century for the Supreme Court to overturn Plessy v. Ferguson, specifically in the Brown, et al. v. Board of Education case. This case, in a rare 9 to 0 decision, ruled that “Separate educational facilities are inherently unequal. Therefore, we hold that [the complainant was] deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”[13] The Brown ruling was a major step in finally overturning the belief in the evolutionary inferiority of certain “races.”

Enter the Darwinian Eugenics Movement

In the 20^th century, a movement called Darwinian eugenics was supported by many scientists and doctors. They believed that inferior persons, both Black and White, should be sterilized to prevent them from producing more inferior persons like themselves.  The movement faced opposition especially from Black and White churches and persons who believed that all men were created in the image of God.

To silence the opposition from churches and many Christians who accepted Genesis, the eugenicists brought a case all the way to the Supreme Court. The Court sided with the eugenicists, ruling that an uneducated White girl whom the state had labeled feeble-minded named Carrie Buck could be sterilized against her will. The eugenics lobby used this case to open the door to massive Darwinian eugenic sterilizations for the thousands of people they deemed unfit to reproduce. The highly respected Supreme Court justice, Oliver Wendell Holmes, sanctioned state-enforced sterilization of so-called “inferior persons” based on Darwinian eugenics, claiming that,

heredity plays an important part in the transmission of insanity, imbecility..… It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles are enough.[14]

Actually, Carrie ended up in an institution largely because, as a pregnant young girl without a family member willing to take her in, it was then the best choice for her. Furthermore, in contrast to the Judge’s claim, Carrie was a life-long avid reader and lived into her seventies. And those who found themselves against her in a bridge game had no reason whatsoever to believe that she was “feeble-minded” or anything close.

Nonetheless, this 8-to-1 Supreme Court decision opened the eugenic floodgates resulting in over 64,000 eugenic sterilizations in America. This ruling also influenced the Nazis to copy the American law, forcibly sterilizing 375,000 putatively “inferior” Germans. At the Nuremberg War Crime trials, the Nazis who carried out forced eugenic sterilizations cited the Buck v. Bell case as their motivation and, likewise, as their defense in the Nuremberg trials.

These few cases, only 3 out of 232, illustrate how horribly wrong the court has ruled in other cases related to the fruits of evolution. All three of these cases were the result of accepting the once widely accepted evolutionary racial inferiority belief and eugenics.

Summary

A clear parallel exists between these Supreme Court rulings, influenced by Darwinism to favor racism and eugenics, and the more modern cases favoring evolutionism over creationism. The creation cases, the secularists believe, were only attempting to prevent the state from favoring one church over others. As the case against Darwinism becomes stronger and stronger, it will eventually be clear from the overwhelming evidence against this materialistic worldview that Darwinism has harmed both society and science. The goal of this website is to present the case against anti-theistic faith in humanistic naturalism and to present the science in support of the creation worldview.

Revision note: on Feb 2, Dr Bergman qualified the statement “the courts at all levels have consistently ruled….” to in all cases I have been involved in, or consulted in, the courts at all levels have consistently ruled….”

References

[1] https://www.aclu.org/press-releases/aclu-comment-supreme-court-decision-carson-v-makin, 21 June 2022; accessed on January 23, 2023.

[2] Ryman, Hana, and J. Mark Alcorn. Establishment Clause (Separation of Church and State). The First Amendment Encyclopedia. https://www.mtsu.edu/first-amendment/article/885/establishment-clause-separation-of-church-and-state, 2009.

[3] Vile, John. Established Churches in Early America. The First Amendment Encyclopedia. https://www.mtsu.edu/first-amendment/article/801/established-churches-in-early-america, 2009.

[4] Kidd, Colin. Civil Theology and Church Establishments in Revolutionary America. The Historical Journal 42(4):1007–1026, December 1999.

[5] https://www.merriam-webster.com/dictionary/church.

[6] Dvorsky, George. 2014. Teaching Creationism As Science Now Banned In All UK Public Schools. https://gizmodo.com/teaching-creationism-as-science-now-banned-in-all-uk-pu-1592549647

[7] For detailed documentation of close to 200 creation cases see Bergman, Jerry Slaughter of the Dissidents: The Shocking Truth About Killing the Careers of Darwin Doubters. 2008. Second, revised edition published in 2013; and Bergman, Jerry Silencing the Darwin Skeptics. Southworth, WA: Leafcutter Press. 2016; and Bergman, Jerry Censoring the Darwin Skeptics. How Belief in Evolution is Enforced by Eliminating Dissidents. Southworth, WA: Leafcutter Press. 2018.

[8] Bomboy, Scott. 2022. A short list of overturned Supreme Court landmark decisions. https://constitutioncenter.org/blog/a-short-list-of-overturned-supreme-court-landmark-decisions.

[9] Dred Scott v. Sandford, 60 U.S. 393 (1857), Justia (U.S. Supreme Court), https://supreme.justia.com/cases/federal/us/60/393/.

[10] https://www.history.com/news/was-jim-crow-a-real-person

[11] Brown, Nikki. Jim Crow & Segregation. 64 Parishes; https://64parishes.org/entry/jim-crowsegregation, 2022.

[12] Plessy v. Ferguson, 163 U.S. 537 (1896). 544, 552.

[13] Brown, et al. v. Board of Education of Topeka, et al. (347 U. S. 483 (1954), 488, 495.

[14] Buck v. Bell 1927, 206-207.

 

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Dr. Jerry Bergman has taught biology, genetics, chemistry, biochemistry, anthropology, geology, and microbiology for over 40 years at several colleges and universities including Bowling Green State University, Medical College of Ohio where he was a research associate in experimental pathology, and The University of Toledo. He is a graduate of the Medical College of Ohio, Wayne State University in Detroit, the University of Toledo, and Bowling Green State University. He has over 1,300 publications in 12 languages and 40 books and monographs. His books and textbooks that include chapters that he authored are in over 1,800 college libraries in 27 countries. So far over 80,000 copies of the 60 books and monographs that he has authored or co-authored are in print. For more articles by Dr Bergman, see his Author Profile.