| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
31 Jan 2005 05:33:39 AM |
| Object: |
Clarence Thomas with a score of 0 percent |
In almost all church-state cases, justices are asked (1) to
allow-on free-exercise grounds-what is not now allowed, or (2) to
prohibit-on establishment grounds-what is now allowed. Affirmative votes in
both types of cases are "separationist" votes, making it easy to "score"
each justice and learn how inclined each is to keep and/or expand the
separation of church and state in the United States .4 On this basis the
leading separationist title belongs to Justice William O. Douglas with a
score of 100 percent, and the antiseparationist title belongs to justice
Clarence Thomas with a score of 0 percent. In the eight church-state cases
heard by Douglas after Warren became chief justice, Douglas voted to expand
religious liberty either by enlarging religious free exercise or by
outlawing an unconstitutional establishment of religion .5 By contrast,
Thomas has so far heard thirteen cases, and in no case did he vote to
expand religious liberty. In all probability he would not even acknowledge
the legal standing of a "conscience."
Combining the scores of all justices sitting under each of the last
three chief justices shows that the Court under Earl Warren (1953-1969) was
the most separationist (liberal) with an average score of 67 percent. Under
Chief Justice Warren Burger (1969-1986), the average dropped to 50 percent,
where it has stayed under Chief Justice William Rehnquist (1986-) if all
fourteen justices serving under him thus far are counted. Five of these,
however, have since retired. Without those five, the average of the 9
justices now on the Court is 40 percent, which is strong evidence that the
shift from liberal to conservative in the larger political context is
mirrored in the judicial branch, at least where church-state issues are
concerned.
One more aspect of these voting records is noteworthy. Since Scalia
joined the Court in September 1986, he and Rehnquist have heard twenty-two
church-state cases and voted alike in all. In eighteen cases they voted
"antiseparationist," twelve as part of the majority, six as part of the
minority. The only "separationist" votes they cast were the four cases that
were unanimous.
Since Thomas joined the Court in October 1991, he has heard
thirteen cases and voted every time with Rehnquist and Scalia. It is truly
meaningful to say that these three justices constitute a hard-core,
regressive bloc on church-state matters.
FOOTNOTES
4. See appendix 2 for the scores of all the Supreme Court justices
from the Earl Warren Court to 2003.
5. Douglas came on the Court in 1939. From then until Earl Warren
became chief justice in 1953, Douglas heard sixteen other church-state
cases in which he typically voted a separationist line.
SOURCE: Religion on Trial, How Supreme Court Trends Threathen Freedom of
Conscience in America, Phillip E. Hammond, David W. Machacek, and Eric
Michael Mazur, Altamira Press, A Division of Rowman & Littlefield Publishes
inc (2004) p. 134
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
"Dedicated to combatting 'history by sound bite'."
Now including a re-publication of Tom Peters
SEPARATION OF CHURCH AND STATE HOME PAGE
and
Audio links to Supreme Court oral arguments and
Speech by civil rights/constitutional lawyer and others.
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