Religious Liberty And The 2021-22 Session Of The US Supreme Court

Aug 6th, 2022 | By | Category: Featured Issues, Politics & Current Events

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The First Amendment of the United States Constitution, ratified in 1791, begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  In other words, there will be no state (i.e., “established”) religion in the US, while the United States will protect and guard the “free exercise of religion.”  Even a cursory reading of this Amendment indicates tension and the need to balance prohibiting the Congress from establishing a specific religion with the protection of individual citizens’ free exercise of religious beliefs.  Over the past 60 years, the Supreme Court, for example, has rejected prayer in public schools, the reading of the Bible in public schools, and even organized prayers led by students at high school football games—all as a violation of the First Amendment’s “establishment of religion” clause.  In addition, the major precedent for the Court in this area has been the 1971 Lemon v. Kurtzman case, which established what became known as the “Lemon test:”  “Whether the challenged government action has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.”  But, in using the Lemon test, the Court ignored the other part of the First Amendment, the “free exercise of religion.”  The 2021-2022 session of the Supreme Court restored a healthy balance between the two operative clauses of the First Amendment.  Let’s consider two examples:

  • First is the 2022 Carson v. Makin case, which concerned the state of Maine and its unique practice in funding secondary education.  Richard W. Garnett, law professor at Notre Dame, summarizes this unique practice:  “Maine operates a tuition-assistance program for parents who live in school districts without their own secondary schools. [Fewer than half of Maine’s school districts operate a public high school.]   The parents choose a school, public or private, and the state helps them pay to attend. A range of schools are eligible, including ones outside Maine, and many offer elite programming and plush amenities that differ dramatically from public offerings.  Yet the state refuses support to families that choose a ‘sectarian’ school—one that ‘promotes the faith or belief system with which it is associated’ or ‘presents the material taught through the lens of faith.’”  In a 6-3 decision this summer, the Supreme Court ruled that this practice of Maine violates the free exercise of religion clause of the First Amendment.  Chief Justice Roberts wrote that Maine “prohibits denying otherwise available public benefits to religious individuals and institutions.”  As Garnett demonstrates, the Carson case along with the Trinity Lutheran v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020) clarified that the Constitution neither “requires nor permits discrimination simply on the basis of religion in educational funding.  Cooperation between government and religious schools doesn’t establish religion, and antireligious discrimination is inconsistent with the guarantee of free exercise.”  As Chief Justice Roberts argued, “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”  Barnett concludes quite correctly that “The Constitution distinguishes between religious and political authority.  It differentiates between church and state, and prohibits official interference with religious affairs, to protect religious freedom, not to license antireligious discrimination.”  The Lemon v. Kurtzman (1971) case had barred state funding for instruction at “sectarian” religious schools on the grounds that it constituted an ‘excessive entanglement” with religion.  [Lemon even went so far as to prevent a state’s reimbursement of teacher’s salaries and textbooks connected to purely secular subjects taught in religious schools.]  In Carson, the Court rejected that legal test.
  • Second is the Kennedy v. Bremerton School District case.  This case involved a Washington state high school football coach named Joseph Kennedy, who prayed privately on the football field after games.  His practice of praying first began on his own after the games; eventually his players joined him.  For seven years no one complained. Until a “well-meaning visitor commented positively on the school’s practice to Bremerton’s principal.  The district asked Kennedy to cease involving students, which he did.  But he continued to pray on the field.  The district asked him to end this practice as well, but he continued to pray.  The result?  He was fired.  The School argued that Kennedy was “on duty” when he prayed, so his prayers were “state speech and breached the Constitution’s pledge of no government ‘establishment of religion.’”  The fundamental legal test to which the Bremerton district appealed was rooted in the Lemon v. Kurtzman (1971) Supreme Court decision:  Whether a “reasonable observer” might see some “religious conduct and think (however erroneously) that it had a government endorsement.”  Justice Neil Gorsuch, who wrote the 6-3 opinion in the Kennedy case, argued that Coach Kennedy was within his rights under the “free exercise of religion” clause in the First Amendment to pray quietly on the field after games.  He also stipulated that “Respect for religious expression is indispensable to life in a free and diverse republic—whether those expressions take place in a sanctuary or one a field, and whether they manifest through the spoken word or a bowed head.”  Gorsuch also contended that if Kennedy’s action was considered “government speech,” then “a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”  Gorsuch likewise addressed the tension between the two operative clauses of the First Amendment:  “A natural reading suggests the Clauses have ‘complementary’ purposes, not warring ones.” The school punished Kennedy under “a mistaken view that it had a duty to ferret out and suppress religious observances . . . The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

Throughout the 20th century, the Supreme Court used the Establishment Clause of the First Amendment to permit government at all levels to restrict religious behavior and speech that is protected by the Free Exercise Clause of the First Amendment.  As Max Raskin, law professor at New York University School of Law argues, the “Lemon test” proved completely unworkable.  “Does a strict ‘wall of separation’ allow firefighters to aid churches by putting out their fires?  What about tax deductions, which have always been permitted?  Why is busing allowed but not textbooks?  The Court realized its errors and began correcting them.”  These two important Court decisions in the summer of 2022 are meaningful advances in balancing the Establishment Clause and the Free Exercise Clause of the First Amendment.  John Adams once wrote that “Our Constitution was made only for a moral and religious people.”  As Raskin observes, “That doesn’t mean the Constitution demands religious observance of all citizens, but it doesn’t allow for the discrimination against those who choose to participate in millennia-old religious exercises of educating their children in accord with their sacred beliefs.”  With these Supreme Court decisions handed down in 2022, the Free Exercise Clause of the First Amendment has been clarified and secured.

See Richard W. Garnett in the Wall Street Journal (23 June 2022); Nicholas Tomaino in the Wall Street Journal (2-3 July 2022); Adam Liptak in the New York Times (28 June 2022); Wall Street Journal editorial (28 June 2022); Max Raskin in the Wall Street Journal (28 June 2022).

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