HOUSE_OVERSIGHT_017395.jpg

4.2.12
WC: 191694

Despite the crass partisan political objective of the undertaking and its utter incompatibility with
the Constitution O’Connor had sworn to uphold, she agreed to help, writing the following letter
for publication:

“You wrote me recently to inquire about any holdings of this Court to the effect that this
is a Christian nation. There are statements to such effect in the following opinions:
Church of the Holy Trinity vs. United States; Zorach vs. Clauson; McGowan vs.
Maryland.”

Not only was O’Connor wrong to write any letter in support of this unconstitutional, partisan,
kooky proposal, she was wrong on the law, wrong on the facts and wrong on her history. First of
all, if this were a “Christian” nation, its form of Christianity would be decidedly Protestant.
Catholics would be second class citizens. Indeed our Constitution, and the earlier Declaration of
Independence, were designed, at least in part, to protect Americans from the influence of the
Catholic Church, which was reviled by many of our founding fathers, including Adams and
Jefferson. (“Monkish ignorance” was a clear reference to the Catholic Church.)92 Second, there
are no such “holdings.” Third, the first case she cited (which had long ago been discarded, if not
overruled) contained—in dictum—some of the most bigoted language in Supreme Court history
by one of the most bigoted Justice in its history, David Brewer.

Brewer’s dictum, in an obscure immigration case, declared “Mohomet” and “the Grand Lama” to
be “imposters.” In his other writings and speeches, he decried the evil of Mormonism and other
non-Christian faiths. He was an anti-Catholic bigot and an anti-Semite, as well as a racist and
segregationist. He believed that we were a white Protestant nation and he smuggled the concept
of a “Christian nation” into dictum not even in a case that did not even raise the issue.

When, in 1892, Brewer wrote the disgraceful and bigoted opinion cited by O’Connor, the U.S.
was, demographically, a white Protestant Christian nation. The nation’s demography changed
dramatically in the nearly a century between that decision and O’Connor’s letter. And the law
reflected that change.

Since 1892, the court has not referred to this nation as “Christian” or “Protestant.” Indeed, the
justices have gone out of their way to be inclusive. For example, when Justice William O.
Douglas sustained a New York program permitting public school students to be released for an
hour each week for religious instruction, he specifically gave as an example of religious
accommodations “a Jewish student [asking] his teacher for permission to be excused for Yom
Kippur.” Yet this was one of the decisions miscited by Justice O’Connor as containing statements
to the effect that this is a Christian nation.93

When her letter was disclosed, Justice O’Connor issued a statement regretting that it has been
“used in a political debate,” and the Supreme Court media office said that O’Connor “had no

92 Cite Jefferson
93 In at least one, a justice said—in passing—that “we are a Christian people.” But he then quickly added in the
same sentence that we are a people who accord “to one another the equal right of religious freedom” (emphasis
added). United States v. MacIntosh, 283 U.S. 605, 625. Justice Holmes, Brandeis Stone, and Hughes dissented.
Justice O’Connor failed to mention this case.

308

HOUSE_OVERSIGHT_017395