Bench Memos

Law & the Courts

The Religious Liberty Court

The Supreme Court in Washington, D.C., January 21, 2020 (Will Dunham/Reuters)

After a Supreme Court term that ended with three major victories for religious liberty over the span of ten days, this is a good time to take stock of how far the Court has come in this area under the current majority.

For starters, let’s recall how overtly hostile the Court was to religion for many decades. The First Amendment contains two clauses concerning religion, the Establishment Clause and the Free Exercise Clause. For generations, the Court interpreted the first clause in a way that treated religion with suspicion. Rather than recognizing it in terms of its text and historical meaning, it made the clause a license to shrink the right to free exercise. As Justice Thomas has noted, “The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government.”

For years, the Court steered the government away from anything that might even tenuously smack of an endorsement of religion — not of a particular sect, but just religion in general — in a way that hindered voluntary religious practice. The test adopted in Lemon v. Kurtzman (1971), for example, was notoriously muddled and led to inconsistent results on innocuous public displays of religious symbols and barred voluntary school prayer even when led by non-faculty at graduation ceremonies and football games.

It did not matter that the Court was dominated by the appointees of Republican presidents.

In School District of Grand Rapids v. Ball (1985), the Court struck down two programs in which public-school teachers offered secular classes in religious schools, fearing that they would “subtly (or overtly) conform their instruction to the environment in which they teach.” Of the seven Republican appointees on the Court, four voted to strike down both programs, and two of the remaining three voted to strike down one of the two programs.

Meanwhile, the standard for free-exercise claims was crippled by the Court in Employment Division v. Smith (1990) — in an opinion by Justice Scalia, no less — which held that an individual’s religious beliefs did not excuse compliance with an otherwise valid, neutral law of general applicability. Congress and numerous states subsequently had to pass Religious Freedom Restoration Acts to undo the damage.

After 2005, with the arrival of Justice Alito and Chief Justice Roberts, the Court’s checkered record gave way to greater clarity on and greater respect for religion. And in the last decade, the Court has decided an unbroken line of significant victories for religious freedom and expression:

  • Arizona Christian School Tuition Organization v. Winn (2011), holding that taxpayers challenging a state tax credit for people who donate to organizations providing scholarships to religious schools lack standing;
  • Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), applying the First Amendment’s ministerial exception to a Lutheran schoolteacher;
  • Town of Greece v. Galloway (2014), upholding the opening of legislative sessions with prayer by volunteer chaplains under the Establishment Clause;
  • Burwell v. Hobby Lobby Stores (2014), exempting a closely held corporation from Obamacare’s contraceptive mandate under the Religious Freedom Restoration Act;
  • Holt v. Hobbs (2015), holding that a state prison could not prevent a Muslim prisoner from growing a short beard in accordance with his religious beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA);
  • Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores (2015), ruling in favor of a practicing Muslim’s employment discrimination claim against a store that refused to hire her because her headscarf violated its employee dress policy;
  • Reed v. Town of Gilbert (2015), striking down a sign code enforced against a pastor who placed signs announcing church services as a free speech violation;
  • Zubik v. Burwell (2016), vacating lower court rulings against religious organizations that objected to Obamacare’s contraceptive mandate;
  • Trinity Lutheran Church of Columbia v. Comer (2017), holding that an exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment;
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), holding that a state’s attempt to compel a cake maker to design and make a cake that violated his religious beliefs about same-sex marriage violates the Free Exercise Clause;
  • American Legion v. American Humanist Association (2019), holding that the Bladensburg “Peace Cross” memorial does not violate the Establishment Clause;
  • Espinoza v. Montana Dept. of Revenue (2020), striking down a state Blaine amendment’s denial of tuition assistance to parents who send their children to religious schools solely because of their religious status;
  • Our Lady of Guadalupe School v. Morrissey-Berru (2020), applying the First Amendment’s ministerial exception to Catholic schoolteachers; and
  • Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020), upholding the conscience protection rule exempting an order of nuns from Obamacare’s contraceptive mandate.

The pattern is unmistakable: The Supreme Court has never been more protective of religious freedom in its history. Most of these cases were decided by a unanimous or supermajority vote of the justices. None of the last four Republican-appointed justices ever voted against these judgments of the Court.

Conservatives have made so much progress in the religious liberty arena in recent years, but it comes with a few cautionary notes.

First, there is much more to be done, so hopefully the next president will appoint more justices who embrace the text and original meaning of the First Amendment’s religion clauses.

Second, among the five most recent landmark decisions cited above, one (Espinoza) was decided by a 5–4 margin. The other four were decided by a 7–2 margin, but in three of those cases (Masterpiece CakeshopAmerican Legion, and Little Sisters of the Poor), two of the liberal justices in the majority, Breyer and Kagan, signaled in separate concurring opinions that they were joining the majority on narrow grounds and ready to vote the other way under a somewhat different fact pattern or legal challenge. So if the next president picks justices who are hostile to religious liberty or prefer the strict separationism of previous eras, we could lose all of the progress we’ve made.

The situation calls to mind a remark by Benjamin Franklin. After the Constitutional Convention of 1787, the old story goes, a woman asked Franklin, “what have we got, a republic or a monarchy?”

“A republic,” Franklin responded, “if you can keep it.”

What have we got today? To paraphrase Franklin, a religious liberty Court, if we can keep it.

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