The topic of discussion for this Constitution Monday concerns religious liberty. In the 2021-22 term, the U.S. Supreme Court made four decisions in support of freedom of religion. William J. Haun is a senior counsel at the Becket Fund for Religious Liberty and a nonresident fellow at the American Enterprise Institute and recently published a commentary of the decisions.
In Haun’s view, the Supreme Court neglected “America’s best traditions of religious liberty” for more than 50 years and ruled “in favor of legally baseless standards” that have “stoked the cultural misunderstandings of religious freedom that we see today.”
Haun reminded his readers of the importance of religious liberty to the American founders. Freedom of religion was so important to them that they put it first in the First Amendment to the Constitution. This amendment begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …” Haun made the following explanation:
The American founders set religious liberty aside for constitutional protection by including two “religion” clauses in the Constitution’s First Amendment: the establishment clause, prohibiting a government-supported established religion, and the free exercise clause, protection everyone’s right to exercise their religion.
According to Haun, the Supreme Court used “very abstract theories” to interpret the clauses beginning in the 20th century. Under these interpretations, “Judges were empowered to achieve a kind of ‘neutrality’ between government and religion, and avoid the appearance of government ‘endorsing’ religion.” Haun continued, “These up-in-the-clouds ideas confused the law because they had no roots in the reasons stated by the founders, nor did they have any roots in the practices of ordinary Americans that reflect our traditional commitments to flourishing religious exercise. However, the constitutionalists on the current Supreme Court are finding a different interpretation of the First Amendment according to Haun.
Those practices, and America’s founding regard for religious liberty, are now animating the Supreme Court’s interpretation of the First Amendment. Through four religious liberty cases, in a re-rooting of core American freedoms, the court this term ended longstanding distortions of First Amendment. It did so by relying on traditional understandings of the First Amendment’s religion clauses which were crafted to account for America’s long history of religious accommodation, the reality of pluralism and the unique role religion plays in securing self-government.
Haun used “two key cases” to show why the justices needed to make this course correction. The cases are Lemon v. Kurtzman (1971) and Employment Division v. Smith (1990). The first case “twisted the establishment clause into a tool to squelch all religion expression from public spaces in the name of ‘neutrality.’” The second case “twisted the free exercise clause to preserve this no-religion ‘neutrality’ by allowing ‘neutral’ political decisions to burden unpopular religious exercise.”
Decisions like these fly in the face of our country’s history and traditions – a legacy that sees unique virtue in religious liberty. To take one powerful example (of many): In his “Letter from Birmingham Jail,” the Rev. Martin Luther King wrote that religion is necessary in explaining why the rights of Americans rest on a higher power than the state, and therefore the state has no power to take them away.
The Rev. King rightly believed that when the faithful are at their best, their religious exercise serves as a “thermostat” that helps society uphold its highest virtues – not just a “thermometer” that reflects fashionable views. American self-government requires self-governing people, and as George Washington said, religious exercise is indispensable to that end.
The court’s decisions this term continue to re-anchor religious liberty in this traditional understanding. Lemon is formally abandoned. And while Smith has not yet been abandoned, the decision can no longer justify the government’s invocation of abstract “neutrality” to refuse accommodating longstanding religious practices. This is a new path, but one based on old ideas – ideas that, as Justices Samuel Alito, Stephen Breyer and Brett Kavanaugh, along with Chief Justice John Roberts, said in 2019, guarantee religious exercise out of “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”
A third case, Ramirez v. Collier, was part of the reset. This case concerned the “rights of the condemned,” and the decision “protected a death-row prisoner’s right to have his pastor lay hands and audibly pray over him before his execution.” All but one of the justices rejected the “neutrality-equals-no-religion approach.”
Case number four protected the raising of religious flags, and case number five protected public prayer. The protection in the decisions on Shurtleff v. City of Boston and Kennedy v. Bremerton School District came “by invoking American national traditions.”
In Shurtleff, Boston sought to exclude a flag with the Latin cross from flying in front of City Hall. And in Kennedy, a school district sought to end the employment of a high school football coach for praying on the 50-yard line. As the court explained, these exclusions stem from what Kavanaugh called Lemon’s “mistaken view” that religious “neutrality” requires expelling religion from public. Instead, the court said the First Amendment should be understood by its “terms and the traditions undergirding them.” Those traditions prohibit government efforts to stifle religious expression simply because an onlooker might feel offended. “Respect for religious expressions,” the Kennedy decision said, “is indispensable to life in a free and diverse republic.”
The last case, Carson v. Makin, concerned nondiscrimination for religious schools. In this decision, “the court protected the right of religious schools to participate in tuition assistance programs” Because of the Lemon decision, the state of Maine “had excluded religious schools because they taught religion.” However, the court decided that this exclusion “lacked any justification from a ‘historic and substantial’ tradition.” The justices felt that “Maine had violated the centuries-old tradition of religious schools deciding, for themselves, how to religiously form their students and express their faith.”
Haun has hopes that the court’s decisions this term will help to calm the cultural divides in America. “By interpreting religious liberty from the bottom-up, and looking to longstanding American traditions, the court’s interpretation of the First Amendment is a basis for common ground.” It is a reminder of “traditions toward religious liberty” and “the best ways in which they have handled disagreement.”