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Gorsuch derides the 'so-called' separation of church and state

It's not normal for a sitting justice on the nation's highest court to deride the "so-called" constitutional principle of separation of church and state.


It's not the session's most high-profile case, but the U.S. Supreme Court heard oral arguments this week in Shurtleff v. Boston, which is an interesting First Amendment dispute. Just as notable, however, was something Justice Neil Gorsuch said during Tuesday's proceedings.

The case is relatively straightforward: Boston's city hall generally flies national, state, and city flags on its public flag poles, though there are occasional exceptions. On Pride Day, for example, Boston will fly a rainbow flag. If foreign dignitaries visit Boston, the city's flag poles will feature the flag of the foreign officials' countries.

With this mind, Harold Shurtleff, who represents a group called Camp Constitution, applied to have Boston fly a white flag with a red cross. He described it as a "Christian flag," at which point the city declined his request. Gregory Rooney, a local commissioner, concluded that Boston's city hall had to remain neutral on matters of faith.

A legal fight soon followed, and the case made its way to the Supreme Court. By all accounts, given the dominance of conservative justices, Shurtleff is very likely to prevail, but consider an off-hand comment Gorsuch made during oral arguments:

"As I understand it, Mr. Rooney said that he thought it was concern about the so-called separation of state, church and state, or the Constitution's Establishment Clause."

Ordinarily, when we hear references to the "so-called" constitutional principle of separation of church and state, the rhetoric is coming from televangelists or far-right politicians eager to curry favor with activists in the religious right movement.

This week, however, the phrase came from a sitting justice on the nation's highest court — suggesting he has a dismissive view of this bedrock principle of religious liberty.

That's as unfortunate as it is ahistorical. As my friend Rob Boston explained this week:

Consider, for example, Thomas Jefferson, with whom the phrase "separation of church and state" is strongly associated. Jefferson invoked it in an 1802 letter to a Baptist group in Danbury, Conn. The Baptists knew Jefferson was a champion of religious freedom and wrote to him to express their discontent with the situation in Connecticut, where a quasi-established church run by Congregationalists ruled. In his reply, Jefferson spoke of the First Amendment creating "a wall of separation between church and state."

Note, Jefferson didn't feel the need to add caveats or qualifiers. What's more, the nation's third president was hardly alone. Rob Boston's piece added:

In 1819, James Madison reflected in a letter that the "total separation of the church from the state" had protected both religion and government in Virginia. In an 1875 speech, President Ulysses S. Grant asserted, "Keep the church and state forever separate." President John F. Kennedy in 1960 famously remarked, "I believe in an America where the separation of church and state is absolute." ... For a "so-called" principle, separation of church and state sure gets a lot of traction!

A ruling in Shurtleff v. Boston is expected by the summer. Here's hoping Gorsuch doesn't write for the majority.