RBG cherished the separation of church and state. Will her potential replacement do the same?
Ruth Bader Ginsburg Image by getty images
By Noa Wollstein September 22, 2020
Supreme Court Justice Ruth Bader Ginsburg’s passing on Friday, September 18 elicited nationwide mourning and an immediate promise by Senate Majority Leader Mitch McConnell to vote on a Trump-nominated justice despite the fast-approaching November elections.
Approval of Trump’s appointee would cement a conservative majority in the Supreme Court. Democrats and a few Senate Republicans have argued that it is too close to the election for the president to appoint a new member to the court – an argument that McConnell made himself after Justice Antonin Scalia’s seat opened up following his death in 2016.
Among the issues at stake with a new judge on the bench is one that remained dear to Ginsburg as she presided in the Supreme Court for nearly three decades: the separation of church and state.
In the words of Rachel Laser, President of Americans United for Separation of Church and State: “Justice Ginsburg understood that the Constitution established religious freedom as a shield to protect us, not a sword to harm others. Or, as she quoted in one opinion, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’”
The first Jewish woman on the Supreme Court, Ginsburg dedicated herself to assuring that the government did not privilege Christianity above other religions. A longtime advocate for the separation of church and state, Ginsburg offered a dissenting opinion in pivotal cases such as the 2014 Burwell v. Hobby Lobby Stores, Inc., in which the Supreme Court ruled that corporations can make determinations regarding employees’ health care choices on the basis of religion.
Ginsburg also cited the separation of church and state when ruling on cases that dealt with religiously-charged issues such as abortion and LGBTQ+ rights.
But how might a Trump nominee view cases involving the separation of church and state? At a rally over the weekend, the president vowed to appoint a woman to the seat and has since narrowed his list of possible appointees down to four or five candidates. Amy Coney Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit, is rumored to be the frontrunner.
With a week still left to go before Trump announces his pick, here’s what we know about how the potential appointees stack up on separation of church and state.
Who’s in the running?
The shortlist for Trump’s Supreme Court appointment has been narrowed down to include Amy Coney Barrett, Barbara Lagoa, Allison Eid, Joan Larsen, Allison Jones Rushing, Amul Thapar, and Britt Grant.
Some candidates, including Lagoa, Larsen, and Thapar, have kept low profiles in terms of their stance on the separation of church and state. Eid came under scrutiny for supporting a government-funded school voucher program that would apply to religious schools. Rushing argued against legalization of same-sex marriage by the federal government, saying in a panel discussion that the court should have not written: “the opinion in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.” Britt Grant has been involved in upholding causes such as Georgia’s “fetal pain” law, which makes abortions performed past 20-weeks illegal.
Amy Coney Barrett
Barrett’s strong religious beliefs have made the frontrunner a polarizing political figure. A member of Roman Catholic offshoot, People of Praise — a group that has been linked to the inspiration for Margaret Atwood’s novel The Handmaid’s Tale, a story about a religious dystopia that subjugates and abuses women — her religion came to the fore during questioning at her 2017 confirmation hearings to the district court.
Confronted by California Senator Diane Feinstein, who expressed concern about Barrett’s ability to separate religious dogma and the law, Barrett responded: “I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.”
Barrett clerked for late conservative Supreme Court Justice Scalia as well as Republican District Judge Laurence Silberman. Considered to be a favorite of Trump’s, Barrett was on the shortlist to replace Anthony Kennedy on the Supreme Court in 2018 — the seat ultimately went to Brett Kavanaugh. Most of Barrett’s professional career has been spent as a legal scholar at the Notre Dame Law School.
At 48, Barrett would be the youngest justice on the Supreme court and would likely remain on the bench for decades.
Despite claiming that her religious beliefs would not impact her judgments, Barrett has previously come out in support of incorporating religion into a legal career. Speaking at Notre Dame’s commencement in 2006, Barrett advised graduating students:
“You will always keep in mind that your legal career is but a means to an end,” Barrett said. “That end is building the kingdom of God. You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer.”
Barrett’s stance on the separation of church and state has also come under scrutiny for a 2005 article she co-authored, which states that religious beliefs should preclude Catholic judges from enforcing the death penalty. The same article states that judges should not bend to the legal code when laws do not align with Church doctrine.
Though Barrett has been known to side-step questions about abortion, her appointment to the Supreme Court is seen by reproductive health advocates as a threat to women’s access to reproductive health care. Overturning Roe V. Wade, the court case that legalized abortions nationwide has long since been an ambition of Trump’s.
Barrett has said that it is unlikely that the case will be overturned but has expressed intentions to put restrictions on clinics and the circumstances under which women are able to get abortions.
A 2013 Notre Dame Magazine article underscored Barrett’s personal belief that life begins at conception. Barrett also signed a 2015 letter, which recognizes “the dignity of the human person and the value of human life from conception to natural death.”
In that same letter, Barrett recognized “the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman.”
In an evaluation of Barrett that anticipated her appointment to the district courts in 2017, progressive advocacy group Alliance for Justice concluded:
“Barrett holds the dangerous opinion that judges should put their personal religious beliefs ahead of the law and the Constitution when carrying out their duties, which is antithetical to American democracy. Many of her writings lay the groundwork for an attack on women’s reproductive rights, as well as other critical legal rights and protections.”
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