Historic and Liberal U.S. Supreme Court Decisions (1881–2005) The Progression of Legal Positivism
A Special Report Written and researched by Brannon Howse.
1. In 1881, Associate Justice of the U.S. Supreme Court Oliver Wendell Holmes Jr., in his book The Common Law, attacks the moral law: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral political theories . . . have a good deal more to do than the syllogism [legal reasoning process] in determining the rules by which men should be governed.”1
2. In 1907, Charles Evan Hughes, who would later become chief justice of the U.S. Supreme Court, said, “We are under a Constitution, but the Constitution is what the judges say it is.”2
3. In 1932, Benjamin Cardozo was appointed to the U.S. Supreme Court. Cardozo proclaimed his belief in legal positivism when he said, “I take judge-made law as one of the existing realities of life.”3 Cardozo saw little purpose for the person of faith who believed in the moral law as the foundation of the U.S. Constitution and founding documents when he said, “If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist.”4
4. 1947, Everson vs. Board of Education. The U.S Supreme Court took the Fourteenth Amendment, which addressed specific state powers, and hooked it to the First Amendment. With this decision, the Court took off the handcuffs that had restrained and limited the scope of the federal government’s power and placed them onto the states. Now the federal courts were empowered to decide when and what rights the states could practice. So severe was the impact of this ruling that Supreme Court Justice Williams Douglas referred to the 1947 decision as creating a “revolution.” It was a silent revolution of which most Americans are unaware even to this day, despite the freedoms that were stolen from them and their states by the high court. The U.S. Supreme Court deliberately took the separation phrase from Jefferson’s letter out of context, changed the meaning of his words, and began to propagate a lie to the American people. This case was the first time the Court used Jefferson’s letter completely divorced from its context and original meaning.
5. 1948, McCollum vs. Board of Education. The U.S. Supreme Court ruled that Illinois could not offer voluntary or elective religious courses to its students despite the fact that parents had picked these courses and signed printed cards that verified that the parents wanted their children to take these weekly, voluntary, elective religious courses. This ruling set national policy for all the nation’s public schools.
6. 1958, Trop vs. Dulles. Chief Justice Warren declared the Eighth Amendment of the U.S. Constitution could not have the same meaning as it did at the time it was written. Warren stated, “the Amendment must draw its meaning from the evolving standards of decency that marks the progress of a maturing society.” In other words, morals and standards evolve over time as does the meaning of the Constitution.
7. 1961, Torcaso vs. Watkins. In a footnote to this decision, Justice Hugo L. Black wrote, “Among religious in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others.”5 Despite this finding, judges do not apply the “separation of church and state” standard to secular humanism, which is the primary worldview taught in America’s public schools via government funding.
8. 1962, Engel vs. Vitale. The U.S. Supreme Court ruled it is unconstitutional and a violation of the “separation of church and state” for the students of New York Schools to recite a long-standing prayer. This was the first time the Court ruled on a decision using zero precedent—not citing a single preceding legal case to substantiate their justification for such a ruling. In this case, the Court changed the word church to mean “a religious activity in public.” This decision made corporate, voluntary student prayer in America’s public schools illegal throughout the nation.
9. 1963, School District of Abington Township vs. Schempp. The U.S. Supreme Court rules that Pennsylvania public school children cannot be involved in corporate, voluntary reading of the Bible at school. This decision set national policy, as U.S. Supreme Court rulings often do, for all the nation’s public schools.
10. 1968, Epperson vs. Arkansas. The U.S. Supreme Court ruled that Arkansas cannot require that creationism be taught in the public schools.
11. 1971, Lemon vs. Kurtzman. This U.S. Supreme Court ruling established what became known as the “Lemon Test” related to church and state interaction. The Lemon Test requires that state policy have no religious purpose. In addition, the Lemon test requires that no state policy create a situation where one religion would have advantage over another or be promoted over nonreligious beliefs. Interestingly enough, despite the 1961 footnote in Torcaso vs. Watkins that secular humanism is a religion, the Lemon test has not been applied to secular humanism, which to this day enjoys an advantage over the Christian worldview in America’s schools.
12. 1973, Roe vs. Wade. This U.S. Supreme Court ruling allowed for abortion on demand.
13. 1980, Stone vs. Graham. The U.S. Supreme Court ruled that Kentucky cannot post the Ten Commandments in their public school classrooms. The Court said, “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, mediate upon, perhaps to venerate and obey, the Commandments.”6
14. 1984, Lynch vs. Donnelly. In writing her opinion in this case Justice Sandra Day O’Connor created what has become known as the “endorsement test.” This test is used to determine whether or not a government policy is endorsing a religion.
15. 1985, Wallace vs. Jaffree. The U.S. Supreme Court struck down an Alabama statute that required a moment of silence in classrooms for “silent meditation or voluntary prayer.”
16. 1987, Edwards vs. Aguillard. The U.S. Supreme Court ruled Louisiana could not require that evolution and creation both be taught side by side.
17. 1992, Lee vs. Wiseman. Through this decision, the U.S. Supreme Court made it illegal for a pastor, priest, or member of the clergy to offer an invocation or benediction at a public school graduation ceremony. Writing in this decision, Justice Anthony Kennedy created what has become known as the “coercion test.” The coercion test prohibits the minority from being coerced by the majority to participate in a religious activity such as a prayer, the reading of Scripture, or reciting of religious speech in a public setting. Atheist Michael Newdow used the “coercion test” as the foundation of his case in asking the U.S. Supreme Court to make it illegal for public school children to recite the Pledge of Allegiance if it includes the phrase “one nation under God.”
18. 1992, Planned Parenthood of Southeastern Pennsylvania vs. Casey. In writing the majority opinion, Justice Sandra Day O’Connor, Justice Souter, and Justice Kennedy wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life.”7 Author and family advocate James Dobson wrote that “with those words, the Court discarded its historic reliance on ‘a law beyond the law,’ or a transcendent standard.”8 Author and attorney Chuck Colson wrote that “the mystery passage could mean absolutely anything to a future court, including the right to marry your toaster if you wish.”9
19. 1993, Ruth Bader Ginsburg is appointed to the U.S. Supreme Court. While serving as an attorney for the American Civil Liberties Union, Ginsburg wrote a paper entitled, “Sex Bias in the U.S. Code,” which was prepared for the U.S. Commission on Civil Rights in April 1977. The paper recommends lowering the age of consent for sexual acts to twelve years old.
20. 1996, Colorado vs. Romer. In 1992, 53.4 percent of the people of Colorado voted to pass a statewide initiative known as Amendment 2. Amendment 2 was written and put on the ballot as a response to ordinances in several Colorado municipalities that granted minority status to homosexuals not granted to others. The U.S. Supreme Court declared Amendment 2 unconstitutional. Justice Scalia authored the dissenting opinion in which he chastised his fellow justices stating, “Today’s opinion has no foundation in American constitutional law and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but political will.”10
21. 2000, Santa Fe Independent School District vs. Doe. The U.S. Supreme Court declared it unconstitutional for students to pray over the loud speaker system before a football game.
22. 2003, Texas vs. Lawrence. The U.S. Supreme Court declared unconstitutional the law of Texas that made homosexual acts illegal. Steve Crampton, lead attorney for the Center for Law and Policy, declared, “criminal law is quintessentially morals law . . . . Under our constitutional republic, it is the place of the state legislature, acting through its duly elected representatives, to decide what is moral. For a handful of unelected judges to impose their views of morality is not law, it is tyranny.”11 The Court decision struck down sodomy laws in eleven states. To justify their unconstitutional ruling the Court cited foreign law, which many legal scholars believe was in itself unconstitutional. “Justice Anthony M. Kennedy’s majority opinion cited a 1967 British Parliament vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that those laws were in violation of the European Convention on Human Rights.”12
23. June 2005: The U.S. Supreme Court announced its ruling on two cases that involved displaying the Ten Commandments on state property. In the case McCreary County, Kentucky, vs. ACLU, liberal Justice David Souter wrote in a 5-4 decision that the displays in county courthouses were motivated by a religious purpose and so were impermissible. However, in the Van Orden vs. Perry, the Court allowed a monument containing the Ten Commandments to remain on the grounds of the Texas State Capitol because it was surrounded by other historical documents and thus the purpose of the Ten Commandments display in Texas was for historical purposes and not religious purposes. The result of these two rulings is that the Ten Commandments cannot be posted on government property if it is for the purpose of acknowledging God or promoting the religion of Christianity.
24. June 2005, Kelo vs. City of New London, Connecticut. In a 5-4 decision the U.S. Supreme Court ruled that government can take private property and sell it to another private entity. Prior to this ruling government could only take private property for public use such as building a highway, railroad, and other such necessary public infrastructure projects. Through this ruling the Court has now legalized theft and is encouraging the sin of coveting.
1 Oliver Wendell Holmes Jr., “The Law in Science—Science in Law,” Collected Legal Papers (New York: Harcourt, Brace and Company, 1920), 225.
2 Final Report of the Joint Committee on the Organization of Congress, December 1993.
3 Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 10.
4 Benjamin Cardozo, The Growth of the Law (New Haven: Yale University Press, 1924), 49.
5 Torcaso vs. Watkins, 367 U.S. 488, 495, fn. 11 (1961).
6 Stone vs. Graham, 449, U.S. 42 (1980).
7 Planned Parenthood of Southeastern Pennsylvania vs. Casey, Governor of Pennsylvania, 505, U.S. 833 (1992).
8 “Family News from Dr. James Dobson,” Focus on the Family (Colorado Springs, CO: October 1997).
9 BreakPoint, Chuck Colson, March 11, 1996.
10 Scalia, Dissenting opinion, Romer, Governor of Colorado et al., vs. Evans et al,. (94–1039), 517 U.S. 620 (1996).
11 Center for Law and Policy press release, June 26, 2003.
12 “Danger from Foreign Precedent,” editorial, The Washington Times, March 25, 2004.