As you've surely heard by now, Anthony Kennedy is retiring from the Supreme Court.
A lot of the discussion has revolved around what this will mean for
abortion rights, LGBTQ rights, affirmative action, the death penalty...
Basically, all the issues on which the conservative Kennedy sided with liberals
in 5-4 decisions.
But because Kennedy was pivotal on a lot of cases involving church-state separation, too,
I wanted to talk about his legacy there,
because it is mixed.
Let's start with the good.
In 1992 he wrote the 5-4 majority opinion in a case called Lee v. Weisman,
which said: "Formal prayers at public school graduations
were unconstitutional."
The reason you don't have an opening prayer at your graduation ceremony,
-- or at least you shouldn't--
is because of him.
In 2000, he was part of a 6-3 majority in a case called Santa Fe School District v. Doe
that said prayers over the loudspeakers before high school football games
-- even if they were student initiated --
were illegal.
Kennedy agreed that those prayers were still school sponsored,
because it's a school event and you're using school equipment, etc.
And by the way, besides Kennedy,
only two other justices from that majority
remain on the court.
So, that's great! Good on him in those decisions.
But then there's the other side of the story.
In 1989, in a case called County of Allegheny v. ACLU,
there was a question about whether a stand alone nativity scene outside the Allegheny County Courthouse was legal.
It was a complicated case for a number of reasons, but
the 5-4 majority correctly said the display was illegal.
The government was clearly promoting Christianity.
Justice Kennedy,
he was one of the four who did not think it was a problem.
In 2005, there were two separate cases involving Ten Commandments monuments
on government property.
In one case in Texas,
the commandments were part of a larger display with a lot of other monuments.
Taken as a whole, the judges said,
those displays didn't focus on Christianity
even if that was kind of the point of the commandments.
Kennedy was part of the 5-4 majority that said
that was legal.
The other case in Kentucky
involved a standalone monument outside a courthouse.
It didn't matter that it had been there for decades. That was obviously and absolutely a promotion of Christianity.
And the court said 5-4 that that was illegal.
So, yay!
But again, Kennedy was part of the minority that was okay with it.
Just like he was okay with that nativity scene.
What the hell, Kennedy?
A few years ago, there was a case called Town of Greece v. Galloway,
all about whether you could open a City Council meeting with a prayer,
even in the name of Jesus.
The town of Greece had basically shut out every invocation speaker who wasn't Christian.
Kennedy wrote the 5-4 decision that said:
You know what?
Prayers are fine.
Christian prayers are fine, too,
as long as everyone has an opportunity to speak.
You know, then-- then it's legal.
I don't like that decision, but
it is kind of amusing, because now we're seeing more invocations from atheists and Satanists,
even if there are some obstacles. So,
that kind of backfired on the Religious Right.
The ruling has also led to a lot of questions about,
you know, how do you tell when a city is really giving people that opportunity?
Sometimes they let one token non-christian speak,
just so they can say they're inclusive, when they're really not.
It's a big mess.
And it's because Kennedy thought praying at government meetings was a good idea.
Even beyond all that, he has
supported taxpayer money going to religious schools through vouchers.
He said it's okay for Hobby Lobby and other for-profit companies
to deny employees birth control based on the owners' religious beliefs. At least,
they can't pay it for through their insurance.
He said Donald Trump's Muslim travel ban was okay, even though it was clearly religious discrimination and not about safety.
So, after all of that,
the question becomes:
Are we really sad that Kennedy is leaving?
Yes! I am.
Part of it is that I know Donald Trump is gonna nominate someone
who would be on the wrong side of every single one of those issues.
Better to have the devil you know, right?
A guy who will occasionally
do the right thing.
Kennedy was not a friend
to church-state separation.
He was more of an acquaintance who let us crash at his place every few years
But more importantly,
even if church-state separation
isn't the largest concern regarding his legacy,
I care about women's rights.
I care about LGBTQ rights.
I care about minority rights.
Hello!
And more often than not, Kennedy was good on those issues when it mattered most.
I don't know if Democrats will be able to persuade a Republican senator to reject
whoever Trump nominates or--
Or find a way to just stonewall the whole process.
-- shut down the Senate until the midterms --
but I hope they do,
because if Trump gets a second Supreme Court justice, you can bet
that religious right groups will do everything they can
to bring cases to the court
that would ultimately destroy the wall of separation between church and state.
It's the one wall Republicans don't give a damn about.
My name is Hemant Mehta and I write at FriendlyAtheist.com
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