Rewriting the First Amendment: The Roberts Court and Religious Freedoms
One of the fundamental tenets of American governance is the separation of church and state. However, this core value of government is seemingly being tested by the Supreme Court with a host of recent rulings that certain legal commentators have labeled as “pro-religion.” In June 2022, Dobbs v. Jackson Women’s Health Organization overturned protections for abortions established by the 1973 landmark decision Roe v. Wade. Also last year, the bench issued decisions requiring the state of Maine to fund private religious schools and protecting a high school football coach who was fired for offering a prayer on the field after games. A recent survey by the Pew Research Center found that in 2022, twice as many Americans think the Court is “friendly” to religion than in 2019.
This recent shift in attitudes in favor of religion is in large part due to the current leanings of the Court. It is increasingly more conservative and textualist leaning, as many right-of-center members consistently favor religious arguments. Justices Clarence Thomas and Samuel Alito, for example, cite their religious beliefs as critical to their understanding of the Constitution. The three liberal justices–Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson–do not claim to be strongly guided by their faiths. This contrast in opinion is reflected in many of the court’s recent decisions. With many key issues on the docket for the 2023 term, the court has the potential to significantly blur the line between Church and State and continue to challenge historical expectations.
First Amendment religion cases are traditionally viewed through a strict lens known as the Lemon Test. The test, established in the 1971 ruling of Lemon v. Kurtzman, considers three factors to determine if a government action violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion.”
Under this fabric, the Court ruled in favor of the religious side in First Amendment cases about half the time. However, recent decisions challenge this framework. The win rate for the religious side in the Roberts Court has skyrocketed to 83% since he took the bench in 2005. Conservative justices claim that religious liberty faces discrimination, and judges should re-examine the relationship between religion and the First Amendment to provide more protection for mainstream religions like Christianity. A few key recent cases demonstrate the shift in opinion:
Kennedy v. Bremerton School District
In June 2022, the Court ruled in favor of a high school football coach, Joseph Kennedy, who held prayers during and after games. Worried about a lawsuit, the school asked him to discontinue his practice and put him on administrative leave after he refused. In response, Kennedy sued the district, arguing that his prayer constituted “protected speech” shielded under the First Amendment. Writing for the 6-3 majority, Justice Gorsuch abandoned the Lemon Test and claimed that the school restricted Kennedy’s actions because they were “religious in nature.” He established that even though Kennedy was a public school employee, his actions and words were not government-endorsed, and he was not forcing students to join. Thus, the majority ruling concluded that the Bremerton School District discriminated against him. By taking this perspective, the Court changed the way the judiciary addresses religious freedom.
Carson v. Markin
The Court issued another important religious liberty decision in June 2022 that addresses problems surrounding state-sponsored education. In Carson v. Markin, three families in Maine sought to use the state’s tuition aid program to send their children to private religious schools. However, the state denied their request as the program only applied for tuition at nonsectarian institutions. The families sued, arguing that the tuition assistance program must remain neutral between religious and non-religious schools.
In a 6-3 ruling, the Court sided with the families and determined that “a state’s anti establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise." Chief Justice Roberts asserted that “Maine may not choose to subsidize some private schools but not others on the basis of religious character.” He suggested that the involved families experienced discrimination based on religion. This decision complicates the long-established idea of the separation of church and state. Vocal critics, including the Court’s three liberal justices, argue that the majority allow future cases to erode the fragile relationship further and threaten protections for minority religions. It is important to note, however, that Carson opinion does draw on precedent from two cases to justify its decision. It cites Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue: decisions that established the constitutionality of a “neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” Since individuals, not the government, make the decision whether or not to fund religious institutions, the Establishment Clause is not evoked.
Dobbs v. Jackson Women’s Health Organization
The Court’s most notable decision in 2022 has strong religious implications. Reversing precedent in the landmark Roe v. Wade that prevented the federal government from restricting abortion, Dobbs gave individual states the right to regulate the process. The conservative majority reasons that the Constitution does not address abortion, nor is it deeply rooted in the nation’s history, and thus is not an issue that can be decided by the federal courts. While the majority does not base its ruling on religion, the language used reflects a Christian pro-life viewpoint. The opinion, authored by Justice Alito, incorporates religion when examining the history of abortion. He uses evidence of 12th century Medieval England’s outlawing abortion, a Catholic practice, to establish context for the issue. The League of Women Voters echoed the controversy over Alito’s reasonsing, stating he used a “lens of the mid-1800s and earlier to determine whether the Constitution confers a right to abortion today.”
The majority opinion does not leave room for other religions to interpret abortion or allow for them to practice their own views on the topic. In Judaism, for example, a fetus is not considered a full person until birth and abortion is allowed if it protects the mother from harm. As a response, a coalition of Jews in Indiana sued the state for its post-Dobbs abortion ban, arguing that it violated their right to freely practice the customs of their religion. Even though it is not inherently religious, the social implications of the case are deeply so.
These recent decisions have raised many questions about the neutrality of the Supreme Court, as 83% of adults do not think that justices should bring their religious beliefs into their jobs. Recently, the Roberts Court has emphasized preventing religious discrimination in its work, with the historical applications of the First Amendment taking the backburner. In 2023, the Court will hear arguments on a multiple of cases involving religious liberty, including Christian government employees forced to work on the Sabbath and pronoun usage. It will likely continue its current efforts to advance religious interests–the makeup of the Bench is unlikely to change anytime soon, as Trump’s three nominees are only in their fifties and most justices serve through their eighties. The institution is expected to make objective rulings and serve as the nation’s ultimate conflict adjudicator. What does it mean when its decision making process receives more criticism and commentary than the cases themselves? How do we understand the bias and influence that contribute to a justice’s judicial philosophy?