Eight years ago, in an opinion warning of the “violent consequences of the assumption of religious authority by government,” retired Justice Sandra Day O’Connor offered a challenge to her fellow conservative justices eager to weaken the wall of separation between church and state: “[t]hose who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?” Today, there are five justices on the Supreme Court who would trade a system that has served us so well for one that has served others so poorly. And they just announced that they will hear a case that gives them the opportunity to make this swap a reality. O’Connor was the Court’s leading supporter of the view that government cannot endorse a particularly religious belief or take action that might convey such a “message of endorsement to the reasonable observer,” and this view put her at odds with the four other members of the Rehnquist Court’s conservative bloc. When she left the Court, she was replaced by staunchly conservative Justice Samuel Alito, and most Court observers expected decades of precedent protecting against government endorsements of religion to fall in very short order. Instead, the Roberts Court’s majority has thus far been content to chip away at the wall between church and state a piece at a time. In Hein v. Freedom From Religion Foundation, the Court immunized many Executive Branch actions from suits claiming they violate the Constitution’s ban on “law[s] respecting an establishment of religion.” And in Arizona Christian School v. Winn, they empowered government to subsidize religion so long as those subsidies are structured as tax benefits and not as direct spending. But the core question of whether the government can “demonstrate . . . allegiance to a particular sect or creed” likely still must be answered in the negative. The case the Court agreed to hear today, Town of Greece v. Galloway, is likely to change that. The ostensible issue before the Court is whether a municipal legislature violated the Constitution’s ban on separation of church and state when it began its meetings with overtly Christian prayers roughly two-thirds of the time. Yet the case also explicitly tees up the question of whether a government “endorsement” of religion of the kind rejected by O’Connor is permitted under the Constitution. If you’re placing bets, the odds are overwhelming that five conservative justices will say that such an endorsement is permitted. With O’Connor gone, the much more conservative Justice Anthony Kennedy becomes the swing vote on questions of church/state separation. Kennedy has held that “government may not coerce anyone to support or participate in religion or its exercise,” but it is not clear that he would forbid much else under the Constitution’s ban on government establishment of religion. By the end of the next Supreme Court term, however, it is very likely that his views will carry the day.
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