Radical Rulings: The History of Judicial Activism

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WASHINGTON - The Supreme Court in the last few decades has given us the right to abortion, the right to gay sex, and the wall of separation between church and state.
But where did these rights and this wall come from?
CBN News looks at the two cases -- unknown to many Americans -- that laid the groundwork for some of today's most controversial laws.

Thomas Jefferson once wrote about "a wall of separation between church and state,” but it was the Supreme Court that began to make that wall so high and so thick.
It started with the 1947 case, Everson v. Board of Education. Professor Daniel Driesbach has written extensively about Everson.

"The case concerned a statute in New Jersey that enabled parents who sent their children to and from parochial schools to receive reimbursement for those expenses,"  Driesbach said.

According to Driesbach, the justices stated in the Everson case, "...there was a high and impregnable wall between church and state, and they could not allow the slightest breach of that wall."

In one of the boldest statements ever to come from the Court, Justice Hugo Black declared, "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."

He continued, "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

And Black went on to say, "That wall must be kept high and impregnable. We could not approve the slightest breach."

That laid the groundwork for the many cases that have since ripped religion out of so much of America's public life.
Constitutional scholar David Barton spoke on the effect of Everson. "Since that Everson case, we've had 3,000 court decisions that repeated that eight-word phrase.  So we hear it over and over and over.  And that's why people think it's a constitutional phrase and a constitutional principle.”

Rob Boston of Americans United for Separation of church and state remarked, "Virtually every Supreme Court case that has come down since Everson dealing with separation of church and state has referred back to that ruling, to the Everson case,” said Rob Boston of Americans United for Separation of Church and State.

Like 1948's McCollum v. Board of Education, which forbid religious instruction in public schools;1962's landmark Engel v. Vitale case, which tossed public prayers out of public schools; and 1963's Abington v. Schempp, which threw Bible reading and the Lord's Prayer out of public schools.

Special Counsel Jay Sekulow of the American Center for Law and Justice, said, "The prayer cases found their root in Everson...that's where it originated from."

Then came 1980's Stone v. Graham that prohibited displays of the Ten Commandments in public schools, 1985's Wallace v. Jaffree that forbid a moment of silence for prayer or meditation in public schools, and 1992's Lee v. Weisman, which scrubbed opening or closing prayers at public school graduations.

Much of this was done on the back of Jefferson's one line about that wall of separation--not in the Constitution, but in a letter to a group of Baptist pastors.
Some think the Court used that to morph Jefferson into a strict separationist, but Driesbach doubts he was one.

"When he was president of the United States, he endorsed the use of federal funds to build churches and send missionaries to the American Indians.  So there's reason to doubt that the Court adequately and accurately captured Jefferson's views," Driesbach said.

Despite the fact that Jefferson was overseas as ambassador to France when the first amendment was written, Rob Boston thinks that the justices used Jefferson wisely and, well, judiciously.
"Jefferson wasn't really a primary author of the First Amendment, but Jefferson was the author of the Virginia Statute for Religious Freedom, which is seen as kind of a precursor of the First Amendment,” Boston said.  “It was Jefferson's protégé, James Madison, who helped draft the First Amendment.  So the metaphor is apt, and it is important."

Would the Founding Fathers have wanted such radical rulings that have so distanced religion from the public square?
Mat Staver of the Liberty Council believes the court went way too far in Everson.

"It ultimately became a wrecking ball for freedom of religion, and did exactly the opposite of what the First Amendment was designed to protect, and that is the free exercise of religion,"  Staver said.

The next Supreme Court ruling that you may never have heard of, but which ended up radically altering American life, is 1965's Griswold v. Connecticut.
In Griswold, the Court said states could not criminalize the sale of contraceptives to married couples because that intrudes on their "right to privacy."  That newly-found "right to privacy" became highly controversial in later years.

Sekulow explained, "If you look at Griswold, what you can see is the first time the Court recognized the right to privacy, which ends up becoming, ultimately, the right to abortion."

"And the Court's decision in this was that there was a zone of privacy that was created around the marriage relationship,” Barron said, “and that zone of privacy came out of a number of different places in the Constitution." 
But since the Constitution does not actually mention these zones, Justice William Douglas justified finding them by saying, "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."

"Nowhere in the Constitution is the right to privacy mentioned, but it somehow comes out of the Constitution through several justices finding it there for the first time in history, like archaeologists searching for gold, so to speak," Staver remarked. 

Lawyer Chris Barron begs to differ.  He is with the Log Cabin Republicans, a group that often works to push homosexual and privacy rights from within the Republican Party.

"The Ninth Amendment makes it clear that all the rights spelled out in the Constitution are not the end of rights as we know them. It makes it clear that there are rights reserved to people that aren't spelled out in the Constitution," Barron said.

But what the Griswold ruling led to was the Court declaring in 1973's Roe v. Wade that this right to privacy is what gives women the constitutional right to abort their babies.

So it was Griswold's right to privacy "...which then became the threshold, the foundation of the whole right to abortion,” Sekulow declared. “And that's what's propelled everything now, including the partial-birth abortion cases: they're still based on this fundamental issue coming out of the right to privacy of Griswold.  So it started a very downward trend."

And it did not end with abortion. In 2003, in Lawrence v. Texas, the court threw out all bans on sex acts between homosexuals, saying, according to Barron, "The right to privacy also included the right for same-sex couples to engage in same-sex sexual acts."

And later in 2003, when Massachusetts legalized same-sex marriage in Goodridge v. Department of Public Health, it cited Lawrence v. Texas as justification.

Sekulow sees these rights expounded in Goodridge and Lawrence going straight back to Griswold.

"If you see a decision out of the Supreme Court that says same-sex marriage is required -- if that were to happen, I think they will find it primarily...originally...in Griswold, and bring it forward,"  Sekulow observed.

Staver says that Everson and Griswold have something unfortunate in common. "Both of those represent judicial activism at its height...,” he said, “[and] represent judges looking at the Constitution and interpreting their own ideological perspectives into the Constitution." 

But an end to that kind of activism -- what many conservatives hope for and many liberals fear ---could begin on the high court if enough new conservatives become justices here in the next few years.

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Paul  Strand

Paul Strand

CBN News Washington Sr. Correspondent

As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at Facebook.com/PaulStrandCBN.