In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter.
The 1stAmendment of the U.S. Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first half of the line is generally referred to as the Establishment Clause. At a minimum, the clause prohibits government from declaring and supporting a national religion, a common practice in other countries at the time the U.S. Constitution was written. Questioning Sonia Sotomayor, as well as future Supreme Court nominees, on her interpretation of this clause is imperative to understanding her judicial philosophy.
Exactly what activities are permissible under the Establishment Clause are constantly debated, and thus frequently find their way to the U.S. Supreme Court. Modern debates over separation of church and state began with a 1947 Supreme Court decision, Everson v. Board of Education. Justice Black quoted Thomas Jefferson in declaring that the Establishment Clause erected a “wall of separation between church and state.” Regardless of the bold rhetoric, the court rejected a claim of improper government aid to religion when New Jersey used state funds to provide bus transportation to all local schools including religious ones. Current concerns have ranged from support of religion with school voucher programs to coercion of students when students are required to sit through student led prayer and the implied endorsement of religion when religious symbols appear on government property. Just this year, the Court heard Pleasant Grove City v. Summum, in which the Court decided that a religious group, the Summums, was not entitled to place a religious monument in a city park because the placement of a permanent monument in a public park is a form of government speech.
The Establishment Clause might seem as though it is unrelated to LGBT civil rights, but many laws impacting the LGBT community have their roots in interpretations of religious doctrine. Religion has often been used as a justification to implement discriminatory laws, such as those that criminalized intimate relationships between two people of the same sex. Going forward, probing Sotomayor’s understanding of the Establishment Clause may provide clues as to how she would approach issues like marriage equality.
Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page.
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