The Supreme Court trifecta of 2022
I don’t quite know how to describe my emotions as I read some of the Supreme Court’s decisions in the last week.
As head of the Southern Baptist Convention’s public policy entity (The Ethics & Religious Liberty Commission) from 1988 to 2013, I had been working diligently to bring about the results of three of these cases brought to fruition.
First and foremost, of course, was the Dobbs v. Jackson Women’s Health Organization decision in which the Supreme Court overturned (by 6 to 3) the 1973 Roe v. Wade decision which legalized abortion in most cases in all 50 states. Roe was the chief reason the U.S. had one of the most abortion-friendly legal regimes in the world, only exceeded by China and North Korea.
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As Justice Alito explained, “Roe was egregiously wrong from the start,” explaining “its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a rational settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Even the late Justice Ruth Bader Ginsberg, although radically pro-abortion, agreed with Alito’s description of the decision.
Contrary to the description of the Dobbs decision by the mass media, the Supreme Court did not “destroy democracy” or “make abortion illegal.” Instead, they restored the abortion issue to the people of each state to decide, which was the way it was prior to 1973.
As a consequence of Dobbs, I suspect in a relatively short period of time we will see a legal situation very much like it was in January 1973. You will have significant restrictions in the South, the Southwest, the Midwest, and the Mountain states (except Colorado), and very permissive laws in California, Oregon, Washington, Hawaii, and New York, and the Northeastern United States.
As a long-time pro-life advocate, I am looking forward to the 50-state debate that is already starting.
Interestingly, the other two decisions, unlike Roe, deal with a federal constitutional issue. They are to be decided at the federal level rather than by the states.
In the first, Carson v. Makin, the Supreme Court ruled (6 to 3) that while the state of Maine may offer vouchers to students to attend private schools in counties that did not have public high schools, they could not then disqualify students choosing to attend a religious private school with the same aid. To the Supreme Court, this was discrimination against religion and thus unconstitutional.
The Supreme Court then decided 6 to 3 in the Kennedy v. Bremerton decision that the Bremerton School District violated Coach Joseph Kennedy’s constitutional “free exercise” rights by denying him the ability as a citizen to the free expression of his faith. Additionally, the Court said that the school district was violating the establishment clause by seeking to ban his religious speech from school grounds.
These two cases, Kennedy v. Bremerton and Carson v. Makin may have finally driven the final nail in the coffin of the so-called “Lemon test.” This “test” was fashioned out of the 1971 Lemon v. Kurtzman case. Decided during Warren Burger’s tenure as Chief Justice (1969-1986), the Lemon test basically said that for any religious expression or even symbolism to be acceptable on public school property, it must be “neutral” in its impact on religion. If it were to promote a positive impact, that would be, by definition, unconstitutional.
Of course, the “Lemon test” was, by definition, inherently hostile, and unfair, to religion. If students used vouchers to attend religious schools, that was deemed unconstitutional. If prayer and religious observance by students (not teachers) were allowed, it was assumed that promoted religion. What use would a religious exercise or symbol be if it were to produce mere "neutrality”?
Putting the Lemon test on the scrap heap of failed legal models is an inherently good thing for all concerned.
Also, it should be noted that in the Kennedy v. Bremerton decision and the Carson v. Makin decisions, the Supreme Court justices were dealing with “enumerated rights” — rights specifically mentioned in the Federal Constitution, in these cases, religious freedom and separation of church and state.
In the Dobbs decision, they were correcting the Supreme Court’s usurpation of state power. Since abortion is not “enumerated” in the Constitution, it is reserved for each state to decide.
In deciding these cases as they did, the U.S. Supreme Court took three major steps to restore the Constitutional Order intended by our forebearers. I thank God for their wisdom.
Dr. Richard Land, BA (Princeton, magna cum laude); D.Phil. (Oxford); Th.M (New Orleans Seminary). Dr. Land served as President of Southern Evangelical Seminary from July 2013 until July 2021. Upon his retirement, he was honored as President Emeritus and he continues to serve as an Adjunct Professor of Theology & Ethics. Dr. Land previously served as President of the Southern Baptist Convention's Ethics & Religious Liberty Commission (1988-2013) where he was also honored as President Emeritus upon his retirement. Dr. Land has also served as an Executive Editor and columnist for The Christian Post since 2011.
Dr. Land explores many timely and critical topics in his daily radio feature, “Bringing Every Thought Captive,” and in his weekly column for CP.
