By Louis Grumet
With political attention riveted on Merrick Garland’s nomination for the U.S. Supreme Court, it is vital to focus on our constitutional protections and what is at stake in the battle over the late Justice Antonin Scalia’s seat.
Republicans have threatened to block any nominee of President Obama. I understand the political calculus; the GOP hopes to win the presidential election and choose Scalia’s successor. I have little doubt that if the Democrats were in the same situation, they would behave similarly. Politics as usual.
But what troubles me profoundly in this situation is the involvement of the religious right, whose agenda and rationale for blocking an Obama nominee includes sustaining, and expanding, the impact of religion in matters of state. We saw this in the Hobby Lobby case, where a 5-4 court ruling found that corporations can hold religious beliefs and essentially impose those beliefs on their employees.
I consider Hobby Lobby one of the worst decisions in the court, not so much for the result but for the implication that freedom of religion transcends freedom from religion.
Our founders brilliantly recognized the danger of government interference with religion as well as religious interference with governance. James Madison addressed it in writing the Establishment Clause and establishing a crucially important principle to ensure both freedom of and freedom from religion. Hobby Lobby upset that balance, and I fear a Supreme Court nominee of the religious right would dangerously tip the scales even further.
This is a battle I fought, and won, two decades ago as the lead plaintiff in Board of Education of Kiryas Joel Village School District v. Grumet.
In that case, which I took to the U.S. Supreme Court (and prevailed 6-3 over a Scalia dissent), a tiny minority of religious extremists used their bloc-voting political muscle to persuade then-Gov. Mario Cuomo to give the sect a public school district in Orange County to serve their disabled children, marking the first time in American history that a governmental unit was established for a religious group.
I considered the legislation crassly unconstitutional, legally feeble and personally offensive.
Yet by end-running the Constitution, the very vehicle of its existence, this group was sowing the seeds of its own destruction. If the Satmar community could do this, then why couldn’t a group of Islamic extremists do exactly the same thing: buy up a bunch of farmland, subdivide it to their members, form an exclusive school – and then force the taxpaying public to pay for it?
That was the danger I saw two decades ago, and a danger I see today with the religious pandering related to the Scalia seat.
Louis Grumet is an attorney and former executive director of the New York State School Boards Association.