As a member of a teenage Republican club in the early 1960s, I met several “Young Americans for Freedom” (“Yaffers”) and John Birch Society members. The JBS opposed the civil rights movement and believed the U.S. was in dangerous “moral decline,” railing against threats to the family, such as abortion, birth control, homosexuality, environmentalism, and feminism.
Some of the Yaffers would sing “We will hang Earl Warren from a sour apple tree” (to the tune of the Battle Hymn of the Republic) and I dutifully sang along, vaguely aware that this was a reaction to the 1954 Brown v. Board of Education decision, the ruling that declared the end of “separate but equal” schooling for black children in America. The song was also a reaction to the Court’s 1962 Engel v. Vitale decision, where the Court ended mandatory school prayers for violating the First Amendment’s command that the state should not “establish” a particular religion.
When Earl Warren retired in 1969, another Warren ––Warren Burger––became Chief Justice. Both were appointees of Republican Presidents. Growing anger at the Court reached a much higher level after the 1973 decision in Roe v. Wade, which limited government interference in the first trimester of a woman’s pregnancy. Many who strongly opposed integration, the practice of abortion, and the separation of church and state began a serious, decades-long battle to reclaim the Supreme Court and undo the Warren precedents.
That battle is almost won. Along with the Dobbs decision last year, the Court held that a high school football coach had the First Amendment “expressive right” to lead team members in Christian prayer after games. This year, the Court has effectively re-segregated higher education in its decision to end affirmative action in college admissions (Student for Fair Admissions v. Harvard). The Court also supported a First Amendment “expressive right” of a Christian website creator to follow her faith in saying she would refuse to serve LGBTQ people that might potentially ask her to create a wedding website. In a case from Colorado, 303 Creative, LLC v. Elenis, the Court supported a particular kind of Christian religious belief and expression, one that finds gay marriage “false” in the eyes of God. Yet many mainline Christian congregations, including one I now belong to, see Christ as welcoming all who choose to follow Him, and will conduct gay marriages.
If you want to understand the politics of the current 6-3 conservative majority on the Court, look no further than the long-term movement to undo the Warren Court’s legacy. Liberals had pushed for U.S. laws to embrace racial equality and equal opportunity, to prevent state and federal governments from supporting certain religious views, and pushed for allowing women –- not the state –– to make the most important decisions about their bodies and lives.
Yet certain Christian sects fervently hold that a fertilized egg (a zygote) is a human being, and have pushed politicians to not only ban abortion, but to prohibit dispensing medications that prevent the implantation of a zygote into a woman’s womb. With Roe gone, states are free to do so. While Brown and Vitale have not yet been overturned, the ongoing conservative retrenchment against the Warren legacy is clearly evident.
These recent Court decisions are moving us closer to the values of the John Birch Society, (anti-feminism, anti-birth control, anti-homosexuality) and the values of “White Christian Nationalists,” who believe that America should be a nation where white people maintain a hold on public policy, with laws that support certain kinds of biblical beliefs about conception and who has the right to love and marry. My “Yaffer” friends from years ago might actually be feeling pretty good now; even though Earl Warren was not hung from an apple tree, the Warren Court’s liberal conceptions of equal protection and separation of church and state have been hung out to dry.
There is nothing more “legal” than a Supreme Court opinion, but the direction of these recent opinions strikes me as wrong, at best, and pretty possibly pernicious as well.