State legislature erodes church-state line

Recently the South Dakota Legislature approved a Joint Resolution calling on one another and all South Dakotans to “seek the Lord Most High for his healing presence and mercy upon South Dakota.”

My initial reaction to the resolution was that it would be more suited for the Prayer of the Faithful in the Catholic Order of the Mass or any other religious service but certainly not as a part of the business of the South Dakota Legislature.

The resolution was introduced by the Christian Nationalist wing of the Republican lawmakers and it was approved by a comfortable majority of Republicans in both chambers. The resolution will have no visible impact on the performance of our state government as it is a legislative statement and nothing more.

However, the resolution is another example of the lawmakers diverting their attention away from the real issues challenging our state to appease the felt convictions of a few lawmakers.

We might consider the position a resolution of this type puts lawmakers in who might feel such a resolution has no place in a secular legislative body but must now be voted upon. The thought might be — do I fall on my sword by voting “no” knowing that I will be challenged as being un-Christian or do I put principle aside and vote “yes” knowing that the resolution will have no real consequence.

Lawmakers across our nation now feel quite comfortable in introducing and acting upon resolutions like the one above because the U.S. Supreme Court has all but set aside the U.S. Constitutional prohibition against governmental action “respecting the establishment of religion” in favor of a much-expanded “free exercise of religion” guarantee.

For 50 years prior to the Roberts Court, the US Supreme Court applied a rational three-prong test to governmental action challenged as a prohibited establishment of religion.

The Court considered (1) whether the contested government action has as its primary purpose a valid secular end or a religious end, (2) whether the government action has a primary valid secular effect or a religious effect, and (3) the degree to which the government action has intruded upon the business of religion.

Applying the three-prong test to the contested resolution above one might conclude that the resolution has both a primary religious end and effect rather than any valid secular or state purpose or effect and that the resolution serves to usurp the business of religion in composing and offering prayers to the Lord Most High. This logic was applied by the Court not because the Court was an enemy of religion but because the Court sought to protect religion from a greater secular power.

The Court today chooses to resolve establishment of religion controversies by pretending to know if the contested government action is or is not consistent with our historical tradition regarding religion in America. The Court appears to believe that our framers were of a common mind in supporting the merger of the business of church and state although the historical record would suggest otherwise.

History also reveals that the framers of the 1889 South Dakota Constitution erected a higher wall between church and state than the wall of separation created by the First Amendment to the U.S. Constitution.

I borrow from the admonition dating back to Jefferson and stated frequently by learned jurists over the centuries, “We must take alarm with the first experiments with our liberties. Today the state composes an official prayer, tomorrow the state proclaims an official church of the state.”

Indeed, Christian Nationalists do have an end in mind.