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The Supreme Court and Religion
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My name is Erwin Chemerinsky. I'm Dean at the University of California, Berkeley
School of Law. And I wanna talk about the religion clauses in the First Amendment.
The First Amendment begins with the words, "Congress shall make no law respecting
the establishment of religion or prohibiting the free exercise thereof." These are
respectively referred to as the Establishment clause and as the Free Exercise clause.
To a large extent, these two provisions are complimentary. Imagine if a state
government were to create an official religion, and require that people participate in
that faith. That obviously, by definition, would be an establishment of religion. But also
would infringe the free exercise of religion. Many have thought that if a school were to
require students to participate in prayer, this used to be the case, it would be an
establishment of religion. But also inhibit fringe, free exercise for those of different
faiths. But there are instances where there's a conflict between the Establishment
clause and the Free Exercise clause. If the government didn't pay for chaplains for
those in prisons or those in the military, it could be said that it was infringing the free
exercise of religion for these people. On the other hand, if the government does pay
for chaplains, does that then create problems with regard to the Establishment
clause? If the government taxes church owned property, is that a problem with regard
to free exercise? But if the government doesn't tax church owned property, and gives
a benefit to religion that nothing secular receives, is that a problem with regard to the
Establishment clause? These are enormously difficult issues and courts that had to
grapple with them for decades, if not centuries. I think it's particularly appropriate to
be talking about the religion clauses today because there's a major change afoot from
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the Supreme Court with regard to them. I would say for much of the last half century,
the Supreme Court has had a very robust establishment clause. The court has said
that it's best understood through the words of Thomas Jefferson, that there should
be a wall that separates church and state. And the court has been relatively minimal in
protecting free exercise of religion. The court has said "there's no exceptions from
general laws on account of somebody's religious beliefs." But now I think the court is
moving from a robust Establishment clause to a very minimal Establishment clause.
But relatively little will violate that part of the constitution. On the other hand, it's
moving to a very robust Free Exercise clause. What I'd like to do is examine each of
these clauses in turn. Talking first about the Establishment clause, and then about the
Free Exercise clause. As we go along, we wanna talk about the interplay between
them. What Chief Justice William Rehnquist referred to, "the play in the joints between
the Establishment clause and the Free Exercise clause." And I hope I can explain how
there is a major change going on from the Supreme Court, both with regard to the
Establishment clause and with regard to the Free Exercise clause. Let me start by
talking about the Establishment clause. I've often thought that this is best understood
through the words of Thomas Jefferson, that there should be a wall separating church
and state. This was something that Jefferson said at a time when Virginia was
considering a tax to support a church. The notion of a wall separating church and
state is that the place for religion is in the private realm, our homes, our churches, our
synagogues, our mosques, our daily lives. But the idea of a wall separating church
and state is that our government should be secular. Our government should neither
be identified with a particular region, nor in any way hostile to a particular religion. Nor
should it be identified with religion overall, or hostile to religion in any way. In 1947, in
Everson versus Board of Education, the Supreme Court considered whether or not
the Establishment clause of the First Amendment applies to state and local
governments. After all it begins with the words, "Congress shall make no law." What
does this mean in terms of states? Some states still had official state churches at the
time the First Amendment was adopted. The Supreme Court unanimously agreed that
the Establishment clause applies to state and local governments. It has applied ever
since. But the Supreme Court in doing so also said, with all nine justices agreeing, that
it's best understood as embodying, as implementing a wall separating church and
state. I should as an aside here, that Justice Clarence Thomas, in many opinions has
said he doesn't believe the Establishment clause should apply to state and local
governments. Justice Thomas' view is that the Establishment clause was meant to
keep Congress from creating a national church that would rival the then existing state
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churches. He doesn't believe that it creates a right of individuals, and therefore he
would not have it apply to state and local governments. But to this point, only Justice
Thomas has taken that position. There wasn't much from the Supreme Court about
the Establishment clause prior to Everson, but then the Supreme Court handed down
a number of cases concerning the Establishment clause. In 1971, in Lemon versus
Kurtzman, the Supreme Court pulled together the cases that had already decided
with regard to the Establishment clause and said they were best understood as a
three part test. When the government infringed the Establishment clause, it had
violated any prong of this test. This has often been called the Lemon Test. Under the
Lemon Test, the government would act unconstitutionally if it had the purpose of
advancing or inhibiting religion. Or if the primary effect was to advance or inhibit
religion, or if there was excessive government entanglement with religion. Now a
number of theories developed over time, as to what the Establishment clause means
and how Lemon versus Kurtzman should be implemented. The most liberal justices on
the court believed that the Lemon Test was about implementing a wall separating
church and state. Some of the more moderate justices on the court, Justice Sandra
Day O'Connor, Justice Harry Blackmun said that the best way to understand the
Lemon Test was it was about preventing official government endorsement of religion.
That the government shouldn't be able to endorse religion or religion more generally,
or express a message of opposition to religion. And then there were justices all along
who rejected the Lemon Test. They said that the government should accommodate
religion. We should provide government involvement in religion and religious
involvement in government without concern. They always opposed the Lemon Test,
until recently they were the minority. I realized this sounds abstract. Let me give you a
concrete example. There's a case called Van Orden versus Perry, decided by the
Supreme Court in 2005. I should disclose that I was the lawyer for Thomas Van Orden
in the Supreme Court. What it involves is a six foot high, three foot wide, 10
commandments monument that sits directly the corner between Texas State Capitol
and the Texas Supreme Court. And it has in big letters on the top, "I am the Lord, thy
God." It has then the Protestant version of the 10 commandments. One of the things
that I learned in litigating this case was that there's significant differences between
the Jewish version of the 10 commandments, as opposed to the Catholic version of
the 10 commandments, as opposed to the Protestant version of the 10
commandments. And some of those have real theological significance. Well, it's the
Protestant version of the 10 commandments that's at the Texas State Capitol
grounds. My client, Thomas Van Orden, brought a challenge to this. Saying, "put a
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religious monument at the seat of Texas state government is an impermissible
establishment of religion." The Supreme Court ruled against Van Orden in a five to
four decision. Now as I approached the oral argument, I knew that I had no chance of
getting the votes of Chief Justice Rehnquist, or Justices Scalia, Kennedy, or Thomas.
They take the accommodationist position. They believe that the government violates
the Establishment clause only if it coerces religious participation. A symbol, even a
very religious symbol on government property, doesn't do this. At one point in the oral
argument, Justice Kennedy said to me with real hostility in his voice, "if your client
doesn't like the 10 commandments monument, why doesn't he just look the other
way?" Of course, my response was that a constitutional violation can't be excused by
ignoring it. And there'd be no stopping point to that. The city could put a large cross
atop city hall and say, if somebody doesn't like it, just look the other way. On the other
hand, I thought I had a really good chance of getting the votes of Justices Stevens,
Souter, and Ginsburg. There are separationists, they don't believe religious symbols
belong on government property. So I thought the case would come down to Justices
O'Connor and Breyer. They were the ones who took the endorsement test. I especially
anticipated the case would come down to Justice Sandra Day O'Connor. I made my
brief a shameless attempt to pander to Justice O'Connor. If I could have put Justice
O'Connor's picture on the front of my brief, I would've done so. It turns out that I got
Justice O'Connor's vote. She thought putting the 10 commandments monument at the
Texas seat of state government would be an impermissible endorsement of religion.
But I lost Justice Breyer's vote, so I lost five to four. Breyer concurred in the judgment.
Breyer said there's 24 monuments on the Texas State Capitol, this is just one of them.
He said it wasn't paid for by the state of Texas. It was actually paid for by the
filmmaker Cecil B. Demille, in promoting his movie 'The 10 Commandments.' Breyer
said, "no one complained about this until Van Orden." It had been up there for a long
time. And so therefore, no violation of the Establishment clause. But notice how much
the choice of the theory with regard to the Establishment clause, it determines the
outcome. And it's consistently been that liberal justices have favored strict separation,
and its conservative justices who strongly favor accommodating religion into
government and government into religion. The Lemon Test had been the law since
1971, but it was very much identified with this separationist approach. Well again, all
of this is fairly abstract with regard to the Establishment clause. So let me give a
couple of examples where courts have historically had to deal with this part of the
First Amendment. One that I wanna come back and talk about, in terms of recent
developments, is school prayer. Since the early 1960's, the Supreme Court has found
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that prayer in public schools, even the so-called voluntary prayer, violates the
Establishment clause. The initial cases in the early 1960's were Engel versus Vitale
and Schempp versus Abington School Board. Engel versus Vitale came out of New
York. The Regents that ran the New York Public School System wrote a prayer, and
every student at the beginning of that school day had to recite the Regent's prayer.
The Supreme Court declared this unconstitutional, as an impermissible establishment
of religion. The court stressed, "for the government to write a prayer and then require
that students deliver that prayer is the very essence of establishing religion." The
court talked about even if it were made voluntary and no student had to participate,
inevitably there's coercion in the school context. The court followed this up with
Schempp versus Abington School District. It was a situation where school began each
day with reading a verse from the Bible. The school's defense was it didn't read from
one version of the Bible, a student could read from his or her own religion's version of
the Bible. But the Supreme Court said, "Bibles are inherently religious." And to have
schools begin each day with that is an impermissible establishment of religion. Engel
versus Vitale and Schempp versus Abington School District were very controversial at
the time. Opinion polls showed overwhelming public support for having prayer in
schools. These were some of the cases that the Warren Court was most criticized for.
Yet, the Supreme Court continued to adhere to these cases without exception until
late June of this year, 2022. Let me give you some examples with regard to this. There
was Wallace versus Jaffree, a case from 1985. Alabama adopted a law that required
that every school begin each day with a moment of silent prayer. The Supreme Court
declared this unconstitutional. The court said, "once it's called prayer, it's inherently
religious." "And for the government to have prayer in schools, even silent prayer,
violates the Establishment clause." Lee versus Weisman was a very important case in
1992. It involves a middle school in Rhode Island. Parents had a child about to
graduate. They had older children who graduated from that middle school. And they
remember the middle school used to always invite a clergy member to deliver an
invocation prayer. The family went to complain to the principal. The principal said, "I
hear you, I understand." "We'll invite your rabbi to deliver the prayer." Then Weisman
said, "you don't understand." "It's not that we want a rabbi rather than a priest or a
minister." "We don't think there should be prayer at such a public school event." The
Supreme Court in a five-four decision ruled in favor of the Weismans. The Supreme
Court stressed that a graduation is an important event in a child's life. To have prayer
there puts the child in an inherently impossible situation. If the child doesn't wanna
participate in prayer, does the child leave the stage during the prayer? Does the child
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skip the graduation? The court said that prayer doesn't belong at public school
graduations. Or take the case of Santa Fe Independent School District versus Doe,
from 2000. It involved a school district in Texas, high school football was taken very
seriously there. The students held a vote. The initial vote was whether to have a
prayer delivered at high school football games. Then there was a vote, since the form
had been approved, of who deliver the prayer. And there's an election among the
students. The Supreme Court declared this unconstitutional. The Supreme Court said,
"the football game is still an official school activity." "Some students have to be there."
Football players, cheerleaders, may get academic credit for their participation. And
the court said, "the student delivered prayers at high school football games violates
the Establishment clause." These were the cases about school prayer until just June
27th of 2022, in a case that I'll talk about just a bit. But what I wanna convey is how
strict the court was with regard to school prayer. Another area with regard to the
Establishment clause concerns government aid to religious schools. When may the
government give aid to religious schools, without that violating the Establishment
clause? Well Everson versus Board of Education was an important case here. I
mentioned it earlier, it was from 1947. It involved whether the government could
provide buses to take children to and from religious schools if it was providing buses
to take children to and from secular schools. The court, five to four, upheld being able
to provide buses for religious schools, so long as the same was being provided for
secular schools. The five in the majority said, "this isn't the government providing
religious instruction or indoctrination." "This is the government just providing buses to
take children to and from school." Now the dissent saw that as an Establishment
clause violation. The dissent said, "what's clearer in terms of facilitating religious
education than actually bringing the children to the religious school?" Everson versus
Board of Education, though, was trying to strike a balance. On the one hand, if the
government denied all funding and services to religious schools, wouldn't that raise
free exercise problems? If the government wouldn't provide police or fire or sanitation
to religious schools, is that impermissibly discriminating against religion? On the other
hand, if the government completely subsidizes religious schools, doesn't that raise a
very difficult question with regard to establishment? And so in Everson, what the
Supreme Court set out to do was draw a line. And over many cases, the Supreme
Court refined that line. What the court was holding in these cases is that the
government can provide aid to religious schools if it's the same that it provides to
secular schools. And it's a type that can't be used for religious instruction. So the
government allowed buses to take children to and from religious schools. But the
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Supreme Court said the government can't provide buses for field trips to religious
schools. The field trips might be to go see cathedrals or religious icons. And any
monitoring would be access of government entanglement with religion. And so for
each type of aid, what the court would say is, "is this a type of assistance that might
actually be used for religious instruction?" In which case, it wasn't allowed. The
Supreme Court reformulated this test in 2000, in Mitchell versus Helms. Mitchell
versus Helms involved the state of Louisiana giving instructional equipment to schools
in the state. Among the recipients were public schools, secular private schools, and
religious schools. And the issue was, does it violate the Establishment clause to have
the government give audiovisual equipment, computers, AV projectors, sound
systems, to religious schools? And the Supreme Court was splintered. The Supreme
Court, five to four, said, "the government can provide aid to religious schools if it's
what's given to secular private schools, so long as it is not actually used in religious
instruction or indoctrination." So the government could provide AV equipment like
computers, software for PowerPoint, to religious schools if it's giving it to secular
schools. But they can't be used in religious instruction. Justice Thomas wrote a
dissent, joined by three other justices. And he said, "to deny aid to religious schools
that's given to secular schools, would violate free exercise of religion." So he would
say, not only may the government give aid to religious schools that's actually used in
religious instruction, but to deny the aid violates free exercise of religion. I'll come
back to this view. There were only four votes for it back in 2000. There's now six
votes for it on the Supreme Court. One more case with regard to government aid to
religion, and that's Zelman versus Simmons-Harris from 2002. The state of Ohio
created a voucher system for children in the Cleveland area. The voucher could be
used at any public school or any secular private school. But it couldn't be used, I'm
sorry. Under the program, the aid could not be used at public schools in Cleveland. It
could be used in public schools outside of Cleveland. It could be used at any private
school, secular or religious. 96% of all of the vouchers were used in religious schools.
A challenge was brought to this, arguing that it offended the Establishment clause in
the constitution. Notice the issue is, may the government provide vouchers to parents
that they then use in religious schools? The Supreme Court, five to four, upheld this as
constitutional. Then Chief Justice William Rehnquist wrote the opinion for the court.
He said that this didn't violate the Establishment clause. He said that "the government
was acting out of the valid secular purpose of improving education for children in the
Cleveland area." He said, "if money ends up in the hands of religious institutions, it's
not because of government decisions, but because of parent choices." And that, until
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relatively recently, what the Supreme Court had said when it comes to government
aid to religious schools. So at least if you look up until a few years ago, I tried to
sketch out for you the law of the Establishment clause, especially related to schools.
The importance of the Lemon Test, the disapproval of the school prayer, the
disapproval of government aid to religious schools. Well let me shift from talking about
the Establishment clause to talking about the Free Exercise clause. Everyone agrees
that the Free Exercise clause is not absolute. People, for example, can't commit ritual
sacrifice of human beings, even if they believe that the religion requires it. In Sherbert
versus Verner, in 1963, the court set out a test for the Establishment clause. Sherbert
versus Verner involved a woman in South Carolina who refused to work on her
Saturday Sabbath. When she quit her job, rather than violate her religious beliefs, she
applied for unemployment benefits. The state of South Carolina said to her, "you
voluntarily left work." "And since you voluntarily left your job, you're not entitled to get
unemployment benefits." She sued and said that to deny her unemployment benefits
infringed her free exercise of religion. She said that "I'm left with a choice." "Either
follow my religion and not have income, or get income and have to give up my
religious beliefs." The Supreme Court ruled in her favor. What's most important is the
court articulated the test we now know to be strict scrutiny, saying that the
government violates free exercise of religion if it substantially burdens religion. Unless
it's action is necessary to achieve a compelling purpose. Now what's interesting is
that for the next few decades, the Supreme Court consistently rejected free exercise
challenges and never used strict scrutiny. As an example, Goldman versus Weinberger
involved an Orthodox Jewish doctor who was in the military, who wanted to wear his
yarmulke, his kippah, his ritual skull cap. And this was in violation of the armed
services rules. He sued and said, "to keep me from wearing my yarmulke, my kippah,
violated free exercise of religion." But the Supreme Court gave great deference to the
government and found no violation of free exercise of religion. But what's crucial is the
test was thought to be a strict scrutiny, even though in application, the government
almost always prevailed. But then in 1990, the Supreme Court dramatically
reformulated the test for the Free Exercise clause. The case was Employment Division
versus Smith. It involved Native Americans in the state of Oregon. They believed that
their religious rituals required consumption of peyote, a hallucinogenic substance.
Oregon prohibited the consumption of peyote, it did not have an exception for
religious use. Some states have an exception, Oregon did not. So ultimately the issue
before the Supreme Court was whether the Native Americans had a free exercise
right to use peyote in violation of Oregon law. The Supreme Court ruled against the
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Native Americans. Justice Antonin Scalia wrote the opinion for the court. He said, "the
Oregon law is neutral in the sense that it's not motivated by a desire to interfere with
religion." He says, "the Oregon law is of general applicability because it applies to
everyone in the state." Justice Scalia, writing for the majority, said, "the Free Exercise
clause cannot be used to challenge a neutral law of general applicability, no matter
how much the law burdens religion." Now if it could be shown that the law was not
neutral, in the sense that it was motivated by a desired to interfere with religion, then
it would have to meet strict scrutiny. Or if it could be shown the law was not of
general applicability and that it targeted a religion or religions, then it would have to
meet strict scrutiny. But so long as the law is neutral, not motivated by desire to
interfere with religion, and so long as it's of general applicability, applying to everyone,
the Free Exercise clause can't be used to challenge it. Again, to make this concrete
rather than abstract, think of an instance of a county, and there are several in the
United States, that prohibits all consumption of alcohol. Imagine a Jewish family
wanting to use wine in a Sabbath or Seder dinner. Imagine a Catholic priest wanting to
use wine in communion. Before Employment Division versus Smith, there's no doubt
that the Jewish family or the priest would've won. But after Employment Division
versus Smith, it's very clear that they would lose. Because the law of prohibiting
consumption of alcohol wasn't motivated by desire to interfere with religion, and it
was of general applicability, it applied to everyone. Employment Division versus Smith
got tremendous attention when it was decided in 1990. In 1993, Congress passed and
President Bill Clinton signed the Religious Freedom Restoration Act. The Religious
Freedom Restoration Act states as its goal that it wanted to reverse, by statute,
Employment Division versus Smith. It wanted to restore the law to what it had been
prior to Employment Division versus Smith. It wanted to restore strict scrutiny. So in its
goal to overrule Employment Division versus Smith, the Religious Freedom Restoration
Act says, "whenever the government substantially burdens religion, its action must be
necessary to achieve a compelling government purpose." Congress adopted this law
as to state and local governments, pursuant of its powers under Section Five of the
Fourteenth Amendment. Section Five empowers Congress to draft laws to enforce
the Fourteenth Amendment. Congress as part of protecting free exercise of religion,
that applies to the states by being incorporated into the Fourteenth Amendment,
created the Religious Freedom Restoration Act. In City of Boerne versus Flores, in
1997, the Supreme Court declared the Religious Freedom Restoration Act
unconstitutional as applied to state and local governments. City of Boerne versus
Flores involved a Catholic church in the city of Boerne in Texas. It had grown, it had
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exceeded the capacity of its structure. So it wanted to tear down its existing structure
and build a new church. But the existing church was classified a historic landmark. So
they sued under the Religious Freedom Restoration Act, arguing that to keep them
from tearing down their church and building a new church was a substantial
burdening of religion. The city of Boerne responded by arguing that the Religious
Freedom Restoration Act was unconstitutional as applied to state and local
governments. The Supreme Court ruled with the challenger, Archbishop Flores, and
against the city of Boerne. Justice Kennedy wrote the opinion for the court. He said,
"Congress' power under Section Five of the Fourteenth Amendment is about laws to
enforce the Fourteenth Amendment." If Congress is expanding the scope of rights,
then that's not enforcing the Fourteenth Amendment. The court said when Congress
acts under Section Five of the Fourteenth Amendment, it can do so only to protect or
remedy violations or rights already recognized by the courts. The court said Congress
can't, under Section Five of the Fourteenth Amendment, create new rights or expand
the scope of rights. The court said, "any law adopted in order to meet the
requirements of this would have to be narrowly tailored, have to be proportionate and
congruent from any proven constitutional violations. The Supreme Court said that the
Religious Freedom Restoration Act didn't meet this test. The Religious Freedom
Restoration Act was creating new rights, expanding the scope of rights. And so it was
declared unconstitutional, as applied to state and local governments. But the Religious
Freedom Restoration Act remains in effect as to the federal government. All city of
Boerne versus Flores did was strike it down with regard to state and local
governments. And so with regard to the federal government, a key case was Hobby
Lobby versus Burwell in 2014. This involves a provision of the Affordable Care Act
that, as regulations were implemented, requires that employers provide contraceptive
coverage to their women employees. Some religions brought a challenge to this. Now
there was an exemption for the churches themselves, but not for others. Employers
that had a religious belief against contraception, like Hobby Lobby, said it violated
their free exercise of religion to have to provide contraceptive coverage. And the
Supreme Court, in a five-four decision, used the Religious Freedom Restoration Act
and said, "to force employers to provide contraceptive coverage, if goes against the
religious beliefs, is a violation of the statute." My point here, and there's a law to this
day, is that the Religious Freedom Restoration Act is unconstitutional as applied to
state and local governments. But it still is constitutional as applied to the federal
government. In response to the Supreme Court's striking down the Religious Freedom
Restoration Act as applied to state and local governments, Congress then adopted a
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new law, the Religious Land Use and Institutionalized Persons Act. The Religious Land
Use and Institutionalized Persons Act says that a state or local government
substantially burdens religious beliefs with regard to its zoning decisions, with its
treatment of institutionalized persons, it must meet strict scrutiny. As for the part of
the law that says that the state and local government substantially burdens religious
beliefs in its land use decisions, its zoning decisions. Congress said it was adopting
this under its Commerce clause power. There's a part of the law that says, "state or
local government can't substantially burden religious beliefs for institutionalized
persons, like prisoners." Congress said it was doing this through its spending power
as a condition on federal money. The Religious Land Use and Institutionalized Persons
Act has been consistently upheld and applied by the Supreme Court. Now it applies
only in two contexts. One is things like zoning decisions, and the other is
institutionalized persons, primarily prisoners, but it's quite important. To conclude my
discussion of free exercise, I wanna talk about a case from last term that portends a
major shift from the Supreme Court with regard to the free exercise clause. It
indicates, "there well could be a majority of the justices ready to overrule Employment
Division versus Smith." The case is Fulton versus City of Philadelphia. The City of
Philadelphia contracts with private social service agencies to place children in foster
care. Philadelphia insists that these social service agencies agree that they won't
discriminate based on race, sex, religion, sexual orientation. and they're prohibited
from discriminating on those bases. The Catholic Social Services in Philadelphia
objected this. They said that because of their religious beliefs, they could not place
children with same sex couples. They brought a free exercise challenge to the city,
refusing to contract with them, they discriminated on the basis of sexual orientation.
The Federal District Court and the United States Court of Appeals to the Third Circuit
ruled in favor of the city. Both of those courts said that the prohibition of
discrimination against gays and lesbians was a neutral law of general applicability. It
was neutral in the sense it wasn't motivated by a desire to interfere with religion. As
for general applicability, it applies for everyone who contracts. In other words, under
Employment Division versus Smith, the court said that this doesn't violate free
exercise of religion. The United States Supreme Court unanimously reversed. Chief
Justice Roberts wrote the majority opinion. He said, "the Philadelphia ordinance gives
discretion to city officials to create exemptions from the anti-discrimination
requirement." Now Philadelphia has never granted an exception. Philadelphia leaders
say they never will grant an exception, but Chief Justice Roberts says, they could
grant an exception. He said, "whenever government officials have discretion, the
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ability to grant exemptions is no longer a neutral law of general applicability."
"Therefore, it has to meet strict scrutiny." And here the courts found it failed strict
scrutiny. Let me pause because this is a major change in the law. It says that any law
that gives discretion to create exceptions, if the law significantly burdens religion, it's
gonna have to meet strict scrutiny. Justice Alito wrote an angry 77 page opinion
concurring the judgment. He was joined here by Justice Thomas and Gorsuch. Justice
Alito said, "we should overrule Employment Division versus Smith and overrule it
today." He said, "whenever the government substantially burdens religion, it should
have to meet strict scrutiny." Justices Barrett and Kavanaugh wrote a separate
concurring opinion. They joined Chief Justice Roberts' majority opinion, but they also
wrote separately. Justice Barrett authored this and she said that she finds much in
Justice Alito's opinion persuasive, but the court doesn't have to reach the question
here. When it reaches the question, she said, "there's many hard issues that will have
to be faced." So what's the bottom line from all of this? When it comes to the federal
government, the Religious Freedom Restoration Act applies. If the government
substantially burdens religion, it's gonna have to meet strict scrutiny. When it comes
to state and local governments, the Religious Land Use and Institutionalized Persons
Act applies. In Fulton versus City of Philadelphia it says that whenever the
government has discretion to create exemptions to a law, that means it's not a neutral
law of general applicability. That means it's gonna have to meet strict scrutiny. As I
count votes, that sure looks like five votes to overrule Employment Division versus
Smith. Ultimately to say, whenever the government burdens religion or substantially
burdens religion, it's gonna have to meet strict scrutiny. Now there'll be many
consequences if this becomes the majority. For example, what is religion? The
Supreme Court has always avoided this enormously difficult question. There are a
couple of cases that arose in the Selective Service Act context, interpreting a statute
as to what's religion. But the court's never grappled with what's religion from a
constitutional perspective. The court has said, it has to be a sincerely held religious
belief. But the more exceptions are granted on account of religious beliefs, the more
the court is gonna have to face the question of, what is religion, how is it determined?
What's a sincerely held religious belief? So what I've done is summarize the laws that
existed prior to June of 2022, with regard to the religion clauses. I wanna shift now
and talk about the decisions of October term 2021, through three religion cases
decided by the Supreme Court. And I wanna cover each individually, and then talk
about what they mean together. The first, Ramirez versus Collier, actually was not
about the First Amendment religion clause. It was about the Religious Land Use and
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Institutionalized Persons Act. What's involved here is an individual who is convicted
and sentenced to death. At the time of his execution, he wanted his pastor with him.
He wanted his pastor to be able to pray aloud at time of the execution. And to touch
his body, to lay hands on him, during the time of the execution. Texas refused, Texas
said, "the death chambers are very small in the state." "Audible prayers would be
distracting to those administering the execution." "Having somebody there so close to
the person who's being executed would interfere with the ability to carry out this
procedure." The Supreme Court reversed. Chief Justice Roberts wrote the opinion for
the court. He said, "the Religious Land Use and Institutionalized Persons Act means
that the government has to meet strict scrutiny if it substantially burdens religion. The
government action will have to be necessary to achieve a compelling purpose. The
court didn't dispute that safety in the death chamber is a compelling purpose. But the
court said it's not necessary to ban clergy in order to be able to achieve this goal of
safety. Safety can be achieved in other ways. The court pointed to the many
instances in which condemned individuals had pastors with them at the time of
execution. And said that this was a violation of the federal statute in excluding clergy.
What's the significance of this case? I think what the Supreme Court says is that
when this statute applies, and I think for that matter, when the Religious Freedom
Restoration Act applies, the government's gonna have to meet a very vigorous form of
strict scrutiny. The government's gonna have to do more than just show a compelling
interest. It's gonna have to prove that there's no other way to achieve that goal. The
second case from this term was Carson versus Makin. Carson versus Makin comes
from the state of Maine. There are parts of Maine that are too rural to support a public
school system. In these areas, school administrative units provide funds for parents to
send their children to private school. Under the Maine law, the money has to be used
for secular private schools. The money can't be used for religious schools. Maine says
that its goal is making sure that every child in the state has a free secular education.
Maine says, echoing the words of Thomas Jefferson and James Madison, that it
doesn't wanna use the tax dollars of some to support the religious beliefs of others.
Two families that wanted to send their children to religious school using government
funds brought a challenge to the Maine law. It's worth noting that about 5,000
children in Maine benefited from the state providing funds for going to private school.
The United States District Court and the United States Court of Appeals to the First
Circuit ruled in favor of the state of Maine. But the United States Supreme Court, in a
six to three decision, reversed and ruled against the state of Maine. Chief Justice
Roberts wrote the opinion for the court. He was joined by the conservative Justices,
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Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Breyer and Justice
Sotomayor wrote dissents, Justice Kagan joined the dissenting opinions. To
understand the court's ruling in Carson versus Makin, you need to focus on two other
relatively recent Supreme Court decisions. Indeed the Supreme Court said that
Carson versus Makin was an easy case on account of these two precedents. The first
was Trinity Lutheran versus Comer, in 2017. The state of Missouri had a program
where it provided funds for schools for surfacing playgrounds. Public schools and
secular private schools were eligible to receive this money, but religious schools could
not receive this money. Missouri said it was doing this on account of the provision of
the Missouri Constitution prohibiting direct or indirect aid to religion. The religious
school sued, and it lost in the lower courts. But the United States Supreme Court, in a
seven to two decision, ruled against Missouri and in favor of the school. Chief Justice
Roberts wrote the opinion for the court. Justice Sotomayor wrote the dissent, joined
by Justice Ginsburg. Chief Justice Roberts said, "whenever the government provides
aid for its secular private schools, that you have to provide it for religious education as
well," Chief Justice Roberts said, "it's odious" and that was his word, "for the
government to discriminate against religion in benefits available to secular entities."
Justice Sotomayor wrote a forceful dissent. She said, "this is the first time in history
that the government has ever been required to provide aid to religious institutions."
She said, "before the issue has always been, when may the government?" "This is the
first time that the court has ever said that the government must provide aid to
religious entities." Chief Justice Roberts responded to the criticism of the dissent by
saying, in footnote three, "this is just about aid to playgrounds and not about anything
else." But we know that's not how the Supreme Court operates. We know that one
case inevitably leads to another. And just three years later, the court decided
Espinoza versus Montana Department of revenue. The state of Montana created a tax
credit program. Civically, if parents gave money to a private school tuition
organization, they would get a tax credit of $150. The tax credits would then go to
fund private schools. The money could be used for private schools, but it couldn't be
used for religious education. The Supreme Court, in a five to four decision, declared
this unconstitutional. Chief Justice Roberts wrote for the court. He said, "since the
government is providing this aid to secular private schools, it must provide the aid to
religious schools, unless the government can meet strict scrutiny," which it didn't. Well
this then led to Carson versus Makin. And Chief Justice Roberts said explicitly,
"whenever the government provides aid to secular private schools, it must provide
that assistance to religious schools or it violates the Establishment clause." Justice
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Breyer wrote a strong dissent. He talked about how this is gonna require people to
pay taxes to support religions, that practice in a way that they find to be abhorrent.
Just Breyer said that there's a difference between the secular and the religious. The
government can support the secular without being required to support the religious.
Justice Sotomayor wrote a dissent, in which she said, "Trinity Lutheran versus Comer
was wrong then, and it's wrong now." "Never before that decision was the
government obligated to support religion and the government should never have to
support religion that it doesn't want to." Well, I think this is a case with enormously
important implications. There are throughout the country, in many public school
systems, charter schools. These are schools funded by the government, but operated
by private entities. In California and in other places, there are rules that say charter
schools must be secular. But I fully expect that there's going to be a challenge to this.
Religious groups that wanna organize charter schools are gonna say that it violates
their free exercise of religion to not allow them to get government funding for charter
schools. It's also not just about the area of schools. I think what the Supreme Court's
saying is, whenever the government funds secular activity, it is constitutionally
required to subsidize religious activity. Let me give you an example. Many state and
local governments have laws that provide for aid for the preservation of historic
landmarks. Typically these have included things like churches, synagogues, mosques.
I litigated such a case, handled in the Supreme Court, coming out of New Jersey.
Where New Jersey would provide money for historic landmarks, but not for religious
institutions, houses of faith. The New Jersey Supreme Court unanimously upheld the
New Jersey law that denied the historic preservation money to churches,
synagogues, mosques. The New Jersey Supreme Court pointed to the New Jersey
Constitution, with longstanding provision relating to religion. The Supreme Court
denied cert. But I would imagine if it took the case and took the case today, it would
come down the other way and say that the denial of funding under these
circumstances violates free exercise of religion. Many state and local governments
have programs like drug and alcohol rehabilitation. Often they say that it will go to
secular institutions, but they won't give money to religious institutions that have a
faith-based program. I again wonder whether or not this is constitutional, in light of
the Supreme Court's decision in Carson versus Makin. Carson versus Makin is a very
broad holding, that the government must fund religious schools when it funds secular
private schools. It's important to stress here, how dramatically the law has changed. I
reviewed the law about aid to religious schools for you earlier in this hour. And I
pointed out how the law used to be, when may the government provide aid for
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religious schools without that violating the Establishment clause? Now the question
though is, when must the government provide aid to religious schools or it's violating
free exercise of religion? A dramatically different approach to the Establishment and
Free Exercise clauses. The other major case in religion from this term was Kennedy
versus Bremerton Schools. It came down on Monday, June 27th. Now what's
interesting is there's significant factual disagreement between the majority and the
dissent over what actually happened. It involves Joseph Kennedy, a high school
football coach in Bremerton, Washington. He's a self-described devout Christian. And
after games, he would kneel on the 50 yard line and engage in prayer. Now the
majority characterizes this as his ability to pray silently during non-school events,
albeit in the stadium. The dissent says that this is about the ability of a coach during
the overall football event on public school premises to, in a very visible way, engage in
prayer. The agreement I think would be that Kennedy did engage in silent prayers on
the 50 yard long. Sometime his players joined him, sometimes players from the other
team. After he was told to refrain from this, he then began going onto the 50 yard line
after games and giving Christian inspirational messages that included prayers joined
by players from both teams. The school district told Kennedy to stop praying in public,
they raised Establishment clause concerns. And Kennedy for a brief time complied,
and then he didn't. And they suspended him and gave him a report for performance
evaluation. Kennedy sued and said it violated his free exercise of religion and his
freedom of speech to punish him for praying in this way. The Supreme Court, in a six
to three decision, ruled in favor of Kennedy reversing the lower courts. Justice
Gorsuch wrote the opinion for the court. Justice Sotomayor dissented. Justice
Gorsuch found that it violated both free exercise of religion and free speech to punish
Kennedy in this way for his speech. Justice Gorsuch said that "this isn't neutral, this is
targeting religion." Justice Gorsuch said, "as for speech, this was basically the
teacher's own time." "The football game was already over." The majority characterizes
the ability of a football coach to pray in silent after the game is completed. The court
then went on and said, "to the extent this poses a problem under the Establishment
clause, that's all because of Lemon versus Kurtzman." And the Supreme Court
explicitly overruled Lemon versus Kurtzman, the 1971 case that I began talking about.
The dissent saw the facts very differently. Whereas the majority saw this ability of the
coach to pray in relative private, the dissent saw this is the ability of the coach to pray
very much in public. Justice Sotomayor included photos in her dissent to show the
crowds that were in the football stadium. The dissent's view was that any restriction
on prayer in schools limits free exercise of religion. Any restriction on prayer limits the
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speech of those who want to pray. Well, what exactly did the Supreme Court say? It
overruled the Lemon Test. It said that the test for determining what violates the
Constitution is entirely based on history through the time of the framers. The
Supreme Court said that in determining what violates the Establishment and Free
Exercise clauses, it's not going to be based on purpose, effect, entanglement. It's
going to be very much a historical inquiry. Now I think this is significant in itself. I think
it's also being clear that the court here was not dealing with an official school
mandated prayer. It wasn't dealing with a teacher who wanted to lead students in
prayer. Instead, I think what the court was saying is, to use Justice Alito's word from a
concurring opinion, when there's a lull in school activities, then a teacher can engage
in prayer and it's fine for the students to join. So before school, after school, at recess,
at lunch, teachers are free to pray. And if students wanna join them, that doesn't
violate the Establishment clause. How much further the court will go, we'll have to
wait and see. So how do I tie all of this together? It goes back to where I began. For
decades, the court had a robust Establishment clause and a relatively weak Free
Exercise clause. Now what we have is a very robust Free Exercise clause and little in
the way of an Establishment clause. In Carson versus Makin, Justice Breyer in his
dissent, in Kennedy versus Bremerton Schools, Justice Sotomayor in her dissent,
emphasized how the court was giving no weight to the Establishment clause at all. I
expect we will continue to see the Supreme Court aggressively protecting Free
Exercise, but not using the Establishment clause as much of a limit. There's a case
already on the docket for the Supreme Court to hear in the Fall of 2022, 303 Creative
versus Elenis, that involves a web designer in Colorado that didn't wanna design
wedding webs for same sex couples, which would violate Colorado's antidiscrimination law. And again, I think the question is gonna be, to what extent is the
court going to aggressively protect free exercise of religion? What weight, if at all,
goes to the Establishment clause? All of this, of course, is very controversial and
deeply contested. Liberals favor a wall that separates church and state, conservatives
oppose such a wall. Conservatives have a clear majority on the Supreme Court. And I
hope one thing that I've raised for you is, where will it go in the future? How is the
court going to interpret the Establishment clause or Free Exercise clauses in the year
to come? My intuition is we're gonna continue to see minimal enforcement of the
Establishment clause, but very aggressive protections of free exercise of religion.
Thank you so much for listening.
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