Wednesday, Aug 10, 2022

Conservative Supreme Court Re-Affirms Religious Rights


Most of the media attention to recent decisions by the majority block of six conservative justices on the US Supreme Court has been focused secular issues, such as upholding Second Amendment gun rights, overturning the Roe v. Wade decision, and limiting the rule-making power of the administrative state. But the same justices have been equally aggressive in rolling back Supreme Court decisions which penalized Americans for choosing to live in accordance with their religious beliefs and restricted their rights to express those beliefs publicly.

The most famous of those recent rulings was the decision last month, by a 6-3 vote, in a case called Kennedy v. Bremerton School District, to uphold the right of Joe Kennedy, a public high school football coach in Washington state, who was fired for holding voluntary prayer sessions with his players at mid-field following each game. The decision declared that the prayer sessions did not violate the Establishment Clause in the First Amendment to the Constitution, which forbids Congress from making any law “respecting an establishment of religion or prohibiting the free exercise thereof.”

A few days earlier, the Supreme Court also ruled by a 6-3 vote, in a case known as Carson v. Milk, that if a state or local government is paying tuition for certain students to attend private schools, then the Constitution requires that government to enable the parents to use those same taxpayer funds to pay tuition for their child to attend a religious school as well.

In addition, in May, the Supreme Court voted unanimously, by 9-0, in a case known as Shurtleff v. City of Boston, that a Christian group with permission to conduct a rally in front of Boston’s city hall, also had the right to fly a Christian flag on municipal property while the rally was in progress.


The decisions of the high court in the football field prayer case and the flag case were both seen by legal experts as overturning a precedent set 50 years ago by a much more liberal Supreme Court. In its 1971 ruling in a case known at Lemon v. Kurtzman, that court reinterpreted the meaning of the Establishment Clause by declaring that it set strict limits on an individual’s right to express their religious beliefs, rather than guaranteeing the protection of that right.

The ruling included a three-pronged set of guidelines, known since then as “the Lemon test,” to determine whether a given public religious display, motto, or activity violated the Establishment Clause. To be constitutional, the Lemon test declared, the practice in question must have a primarily secular rather than a religious purpose, and it must not principally advance or inhibit religion. The third and most important part of the Lemon test was that the action not result in an “excessive” government entanglement with religion.

Writing the majority decision in both of the cases which overturned the 1971 Lemon case precedent, Justice Neil Gorsuch stated that, in addition to ignoring the clear original meaning and intent of the Establishment Clause, the Lemon decision’s “one size fits all test for resolving Establishment Clause cases” resulted in a guessing game which had sown confusion and contradictory court opinions since the day it was handed down.

The ruling in the Kennedy case is also a challenge to the precedent set by the 1962 decision in the case known as Engel v. Vitale. Based upon that ruling, since that time, federal courts have routinely struck down all school-sponsored prayers, no matter how ingeniously the school districts tried to make them voluntary, ecumenical, or silent. In 1963, the same liberal Supreme Court ruled in a case known as Abington School District v. Schempp that any mandatory Bible reading in America’s public schools was unconstitutional. The combined effect of the Engel and Abington rulings was to suppress all forms of organized religious expression in the American public square.

Together, the three new conservative Supreme Court decisions will protect personal religious freedoms from overzealous secular government officials and vested interests, such as teachers’ unions, by enabling people and institutions of faith to display their beliefs on government property and to access the same government benefits as non-religious parties.


The recent decisions upholding personal religious freedoms and overturning restrictions upon them from previous decisions are part of a longer-term trend.

In recent years, the Supreme Court ruled that a Catholic adoption agency in Philadelphia had the right to refuse to place children in a household made up of two people of the same gender. It held that Montana had to make its tax-credit-funded scholarships in a school-choice program available to students enrolled in religious schools. It found that a Lutheran school in Missouri had its religious rights violated when it was denied access to government funds to resurface its playground that had been provided to non-sectarian nonprofit schools. The Supreme Court struck down an Obamacare health insurance requirement which violated the beliefs of religious private employers. It also supported Catholic schools in California by ruling that they enjoyed the “ministerial exception” to employment rights, giving them to hire or fire employees involved in religious work as they see fit, free from government interference.

In addition, the Supreme Court changed its position during the course of the pandemic, from initially upholding Covid-inspired restrictions ordered by government officials on houses of worship, to overturning on First Amendment grounds similar orders imposed by the liberal governors of New York, New Jersey, California, and Colorado.


According to a study of 95 Supreme Court decisions involving the Establishment Clause between 1953 and 2020, its rulings gradually evolved. They initially reflected the liberal, anti-religious attitudes which were prevalent during the Earl Warren Court and Warren Burger Court periods, from 1953 to 1986. They began to reflect the more conservative and religion-friendly attitudes which became more prevalent during the subsequent William Rehnquist and John Roberts Court periods.

The study was written by law professors Lee Epstein of Washington University and Eric Posner of the University of Chicago, and was published in April 2021 by the Supreme Court Review. The paper attributed the conservative change primarily to the influence of five conservative justices, starting with Clarence Thomas, who joined the court in 1991, John Roberts in 2005, Samuel Alito in 2006, Neil Gorsuch in 2017, and Brett Kavanaugh in 2018. It called those five “clearly the most pro-religion justices on the Supreme Court going back at least to World War II.” The study did not consider cases influenced by conservative justice Amy Coney Barrett, because she did not join the court until shortly before the end of 2020.

The study also detected a pattern in the Supreme Court’s decisions over the years in defining an individual’s First Amendment religious rights. During the earlier Warren Court years, most of the rulings in favor of religious rights benefitted small or unusual sects, such as the Seventh Day Adventists and the Amish. The cases decided during the current, Roberts Court era have extended the same protections that the Warren Court had earlier granted to the smaller sects to the large, mainstream Christian denominations.

Christian conservatives believe that the pro-religious rulings of the Roberts Court are merely reversing the liberal judicial overreach in Supreme Court decisions from the 1960s to the 1980s, in which prayer was banned from the public schools, religious displays were forbidden on public property, and religious citizens were denied some of the educational and other benefits that the government had made available to secular individuals.


The potential implications for the parents of parochial school students of the conservative majority ruling in the Carson v. Makin case are far-reaching. It confirms that students enrolled in religious schools enjoy the same constitutional right to receive taxpayer-funded tuition payments as students in secular private schools.

The case involved a Maine state program which provided public support to private schools in rural areas, but only if the schools were “nonsectarian” and did not provide religious instruction. The state of Maine was sued by Christian families who argued that providing public support to some private schools but not their children’s Christian schools violated their constitutional right to the free exercise of their religious faith.

The majority of conservative Supreme Court justices found in favor of the parents, setting a new, encouraging legal precedent for school choice advocates and supporters of government-funded private school tuition vouchers in states around the country. As Justice Roberts wrote in the majority opinion, when state and local governments opt to subsidize students to attend private schools, they must allow families to use that public funding to pay for their children to attend religious schools as well.

But while conservatives welcomed the recent Supreme Court rulings restoring their rights to advocate for their religious beliefs in the public square, and giving their religious schools equal access to public support, liberals have called the recent rulings a betrayal of the principle of church-state. As Justice Sonia Sotomayor, a member of the Supreme Court’s minority block of three liberal justices, wrote in one of her recent dissenting opinions, “This Court continues to dismantle the wall of separation between church and state that the Framers [of the Constitution] fought to build.”

Liberal constitutional scholars argue that the Constitution of the United States never mentions G-d, the Creator, or any church or denomination. It is an entirely secular document, as is the Bill of Rights. Liberals also like to point out that many of the Founding Fathers, including Thomas Jefferson, who wrote the Declaration of Independence, were Deists who believed in a G-d-created world, but were not practicing members of any established church or Christian denomination. However, the freedom to practice one’s religious beliefs, whatever they might be, was also one of the founding principles of the 13 colonies which made up the original United States, making the maintenance of strict neutrality on that sensitive question, for the benefit of believers and non-believers alike, an appropriate feature of the new American government.


In a January 1, 1802, letter that Jefferson wrote as president of the United States, he reasserted that principle to a congregation of Baptists in Danbury, Connecticut, by writing: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

While the wall of separation metaphor has become the classic definition of the Establishment Clause, the 1802 letter does not spell out in any detail what Jefferson meant by it. However, his thinking on the subject is much clearer in the Virginia Statute for Religious Freedom that Jefferson wrote in 1786. It declares that, “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

The first reference to Jefferson’s “wall of separation” in a Supreme Court decision appeared in an 1879 case known as Reynolds v. United States, in which the court ruled that the First Amendment did not protect certain Mormon practices. The classic interpretation of the First Amendment’s Establishment Clause appears in the majority decision of a 1947 case called Everson v. Board of Education, written by one of that court’s leading liberals, Justice Hugo Black. Confirming Jefferson’s concept, Black wrote that, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach…”

In addition, the Founding Fathers, including the devout Christians among them, who wrote and approved the First Amendment, clearly intended it to prevent the establishment of any official single national church, such as the Anglican Church of England.


There is a certain tension between the two missions of the First Amendment, preventing the establishment of any single preferred national religion, while simultaneously guaranteeing all citizens the right to believe or disbelieve in any religion, as they see fit.

But Christian conservatives have complained for decades that the liberal Supreme Court’s strict interpretation of Jefferson’s wall of separation concept has interfered with their right to the “free exercise” of their religious beliefs and to lead a flourishing religious life in America. They also sought to overturn the 1962 Engel decision banning prayer in public schools as vehemently as they did the 1973 Roe decision.


The first serious challenge to that liberal interpretation of the Establishment Clause, as fleshed out in the 1971 Lemon v. Kurtzman decision and its three-part test, was a dissenting opinion in a 1985 case known as Wallace v. Jaffree that was written by then Associate Justice William Rehnquist. The liberal majority ruled that an Alabama statute that permitted public schools to observe a minute of silence at the beginning of the school day “for meditation or voluntary prayer” violated the First Amendment’s Establishment Clause. But Rehnquist argued that, “there is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in [the 1947] Everson [decision].” The First Amendment, Rehnquist argued, “has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Since then, the three-prong Lemon test has been under constant attack by the court’s conservative justices, who have argued that it is so vague and difficult to interpret that it is almost impossible for school officials or courts to apply with any certainty or consistency. The late Justice Anton Scalia disparaged it in 1993 as a dead legal concept which continues to “shuffle abroad” despite “being repeatedly killed and buried.”

In 2019, the Supreme Court seriously weakened the Lemon test by refusing to apply it to large cross erected in 1925 in Prince George’s County Maryland as a memorial to 49 local men who died fighting in World War I. In a 7-2 decision, in which liberal justices Breyer and Kagan concurred with the five conservative justices, the majority opinion written by Justice Alito wrote that the Lemon test should no longer apply in cases that “involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.”

However, the Lemon test itself still survived in principle, although the First Amendment cases to which it could still be applied were unclear. Its liberal interpretation of the Establishment Clause was not finally put to rest until it was voted down by the current court’s six-member conservative majority, as explained by Gorsuch’s decision in the Kennedy case, which ruled that the coach should have been allowed to pray with his players on the 50-yard line, and that by firing him for doing so, the school violated his First Amendment religious rights.



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