Onward Christian Soldiers, Supreme Court Edition

The first words of the Bill of Rights are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. In recent decades, that’s meant people are free to practice their religion (the Free Exercise Clause) but not promote it as part of their government jobs (the Establishment Clause).

Charles Pierce of Esquire discusses today’s right-wing reinterpretation of what constitutes free exercise and the establishment of religion:

… It was a pretty good day for theocracy. In Kennedy v. Bremerton School District, by the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell, the Court sided with a football coach named Joseph Kennedy who used to have his team meet at midfield for a postgame exercise in what the Court said Monday was “quiet personal prayer.”

The history of the case is a perfect example of a small-town controversy that was fairly clear-cut until the conservative movement managed to get it through a carefully engineered conservative-heavy judicial system until it finally landed on the doorstep of Supreme Court Justice Neil Gorsuch. In 2015, the school district told Kennedy to knock it off. Kennedy refused and was placed on administrative leave. Instead of reapplying for his job when his leave ended, Kennedy decided to sue the school district. He lost in court. Then he lost his appeal. Then an earlier Supreme Court declined to take his case.

But the longer you can keep going in the courts, the better chance you have of running into a conservative Christian who will find room for white-people Jesus in the Bill of Rights…. Kennedy tried again and, this time he finally found Gorsuch and the rest of the Papal States on the Supreme Court.

Once again, that crew threw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of the previous Establishment Clause law had rested on a 1971 case called Lemon v. Kurtzman—decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger …

Leaving Coach Kennedy’s triumph for a moment, we should be wary of the blithe way the Court’s majority dismisses Lemon as irrelevant to Establishment Clause jurisprudence. Lemon was not purely about prayer. It has also been central to keeping the bunco scheme that is Creationism—as well as its gussied-up cousin, Intelligent Design—out of the public schools … [Lemon] was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana … in 2005, when it helped decide a famous case in Pennsylvania. …

In this particular political moment, you’d have to be considerably naive to think that the reactionary right isn’t coming for the public schools, largely because they never stopped coming for the public schools. They will use radicalized Christian religion as their primary artillery. Last week, the Supreme Court opened up the wallets of Maine taxpayers and invited religious schools to dive right in. Would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority?

… Public education is unconstitutional because it is insufficiently theocratic. An interesting legal theory that is coming soon to a Supreme Court near you.

Looking Toward January 6, 2025

Republicans are predictably screaming about their cult leader being kept off Facebook for the time being. They’re citing the First Amendment, of course, but that’s got nothing to do with social media platforms (until the government starts operating its own platform or regulating their content).

Or as our congressman, Tom Malinowski, tweeted:

The 1st Amendment gives us the right to say crazy things without gov’t interference. It doesn’t require Random House to give us a book contract, or FOX to give us a prime time show, or Facebook to amplify our rantings to billions of people. Freedom of speech is not freedom of reach.

A much more significant issue is the speed with which the Republican Party is deteriorating. From Greg Sargent of The Washington Post

Rep. Liz Cheney’s fate appears sealed: Republicans are set to oust the Wyoming Republican as the No. 3 in the House GOP leadership . . . This is being widely depicted as a battle over the past . . . Most accounts portray it as a sign that in today’s GOP, fealty to the former president is a bedrock requirement, denouncing his lies about 2020 has become unacceptable, and telling the truth about the Jan. 6 insurrection is disqualifying.

All that is true, but the forward-looking dimension to this story is getting lost. What also seems unavoidably at stake is that the GOP appears to be plunging headlong into a level of full-blown hostility to democracy that has deeply unsettling future ramifications.

. . . Republicans may be unshackling themselves from any obligation to acquiesce to future presidential election outcomes they don’t like — that is, liberating themselves to overturn those outcomes by any means necessary.

. . . A Cheney spokesperson denounced her GOP enemies for wanting to “perpetuate lies about the 2020 election and attempt to whitewash what happened on Jan. 6.” This comes after Cheney told GOP colleagues that those lies are “poison in the bloodstream of our democracy” and that insurrection “is a line that cannot be crossed.”

Cheney has also urged Republicans not to turn “their back on the rule of law.” And she insists that the commission examining Jan. 6 should focus on the insurrection, not on leftist extremism that Republicans are hyping to muddy the waters around their ongoing radicalization.

So why is all this disqualifying? [It’s because] she’s demanding something important from fellow Republicans: a full and unequivocal renunciation of the lie that the election’s outcome was dubious. . . .

Now consider what else we’re seeing. Some Republicans are increasingly asserting a willingness to overturn future elections: Rep. Jody Hice’s primary challenge to the Georgia secretary of state is driven by the promise to use his power to invalidate future outcomes.

Other Republicans are asserting the freedom to keep alive the fiction that the election was stolen forever. In Arizona, a GOP-sponsored recount is underway [in hopes of] bolstering that false conclusion.

This combination is toxic: Republicans are untethering themselves from any obligation to recognize future legitimate election outcomes, which will provide the rationale to overturn them, a freedom they are also effectively in process of appropriating. Cheney is insisting on a GOP future premised on a full repudiation of these tendencies, and getting punished for it.

Guess what: These same House Republicans might control the lower chamber when Congress is counting electors after the 2024 presidential election.

“We should start to very much worry about what Jan. 6, 2025, looks like,” Edward Foley, a renowned election law scholar and a Post contributing columnist, told me.

Imagine a 2024 election decided in one state, where a GOP-controlled legislature sends electors for the GOP candidate in defiance of a close popular vote. The same House Republicans who punished Cheney — many of whom already voted against President Biden’s electors, but now control the House and have continued radicalizing — could vote to certify that slate. . . .

This places burdens on Democrats. Democratic strategist Simon Rosenberg told me that this obliges Democrats to level with voters about the threat Republicans pose to democratic stability.

“If Cheney is ousted, Democrats will have to make the radicalization of the GOP a major part of the 2022 conversation,” Rosenberg said.

And as elections scholar Rick Hasen told me, Democrats should try to get patriotic Republicans to support revisions to the Electoral Count Act, to make it “harder for a legislature to send a separate slate when there was no problem with how the election was run.”

Cheney’s ouster should prompt this, along with a much greater public and media focus on the brute reality of the GOP’s fundamental turn away from democracy.

“The core component of the democratic process is that we count the votes as cast,” Foley told me. The punishing of Cheney, Foley concluded, suggests that the Republican Party might [might???] be institutionally “abandoning the very essence of democracy”.