For years certain pundits, preachers and politicians have complained that Americans’ religious freedoms are under assault. Some Christians argue that the government often forces them to choose between following the law or violating their religious convictions. They blame secularists for having made society worse off by purging God from public institutions, particularly schools.
I’ve long been puzzled by the ferocity of these laments. Any reasonable person should agree that Americans enjoy broad freedom of religion. No government agent has ever shown up to interfere with my worship, or suggested what I should believe.
Why do particular Christians feel so oppressed by the government? And how is an increasingly conservative Supreme Court responding?
My curiosity led me to teach a Sunday School class called “The Constitution and its Role in American Religious Life” in March, 2022.
Here are a couple of things I learned.
First, those who believe that religious freedom today is gravely threatened tend to be Catholics and protestant evangelicals, and a majority of the Supreme Court has come to share their view. To reinvigorate religion, conservative justices are moving to exempt religious believers from laws that apply to everyone else. Those exemptions have in some cases enabled believers to evade anti-discrimination laws protecting women and LGBT persons.
Second, conservative justices are skirting long-held precedent to allow greater government support for religion, particularly that practiced in private religious schools. This has weakened the wall of separation between church and state, and could force citizens to fund religious activities they oppose.
What the Constitution says about religion
The Constitution’s role in American religious life stems from the First Amendment’s two religion clauses:
- Congress shall make no law prohibiting the free exercise of religion (the “Free Exercise” clause); and
- Congress shall make no law respecting an establishment of religion (the “Establishment” clause”)
The Free Exercise and Establishment clauses form the constitutional foundation for religious liberty in the United States. Nearly all court battles over religion require the Supreme Court to interpret these short phrases.
The Supreme Court is “weaponizing” the Free Exercise clause in a way that favors conservative Christians
The Supreme Court is re-interpreting the Free Exercise clause– ostensibly to expand religious freedom– in a manner that often favors Christians whose beliefs conflict with anti-discrimination laws. According to constitutional scholars Howard Gillman and Erwin Chemerinsky, the Court’s “conservative majority is in the process of transforming this First Amendment clause into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights, especially for LGBTQ individuals and women.”
This transition is illustrated by looking back at the Supreme Court’s traditional interpretation of the Free Exercise clause. Throughout most of American history, courts held that the Free Exercise clause did not exempt believers from laws that applied to everyone, even if those laws affected their religious practice. Courts applied the law to the religious and non-religious equally. So long as a law did not target religion, believers would have to follow it. People of faith received no special favors.
Here’s how this worked. An Amish farmer believed he had a religious obligation to provide to fellow Amish the sort of aid provided by the social security system. He thus sought relief from paying Social Security tax. The Supreme Court required him to pay the tax, regardless of his religious convictions, and disallowed a Free Exercise exemption, despite the arguable conflict with his beliefs. As the Supreme Court explained, the “state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding government interest.”
The Supreme Court’s I990 decision in Employment Division v. Smith epitomized this principle. In that case two Native American men used the hallucinogen peyote in a religious ceremony. Their employer fired them as a result, and the state denied them unemployment benefits for having used an illegal drug, even in a legitimate religious ceremony. The men went to court asking to be excused from the law based on their beliefs. Justice Antonin Scalia– one of the Court’s most conservative and devout members– wrote the Court’s opinion denying the men a religious exemption to the law. Scalia worried that doing so would create religious “carve outs” from generally applied laws and “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” citing as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.
The Smith decision ignited a firestorm of protest, and a push to overturn the case arose. Interestingly, the fervor came not from traditionally marginalized groups such as Native Americans, but from Catholics and evangelical Protestants.
The legal campaign to graft “religious exemptions” onto general laws had begun.
This movement secured a significant victory in Burwell v. Hobby Lobby (2014). Hobby Lobby Stores, Inc. is a family owned chain of 900 craft stores employing 43,000 people. As explained by company president Steve Green, “Scriptural principles are what should operate our lives.” The family’s religious principles included opposition to all forms of contraception, and led them to oppose the Affordable Care Act ‘s requirement that their group healthcare plan cover FDA-approved contraceptive methods. The Supreme Court’s five conservative justices agreed that the law infringed the Greens’ Free Exercise rights, and exempted the company from the mandate. Whether or not the stores’ female employees shared their employer’s beliefs did not matter.
For the first time in American history, the Supreme Court had given a for-profit corporation a religious exemption allowing it to deny a legally required benefit to its employees.
This trend continued in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where a religious baker had refused to make a wedding cake for a same-sex couple in violation of Colorado’s anti-discrimination law. The baker claimed that serving the gay couple would offend his belief that only one man and one woman could marry. The Supreme Court held that his religious beliefs exempted him from the anti-discrimination law.
Similarly, in Fulton v. Philadelphia (2021), the Court exempted Catholic Social Services from adhering to Philadelphia’s non-discrimination law requiring child placement agencies to allow same-sex couples as foster parents.
These decisions have prompted some legal commentators to worry that the Supreme Court has abandoned its traditional position of neutrality toward religion, appearing instead to take sides in religious disputes and afford believers a position of privilege not available to others.
The Supreme Court is likely to continue this trajectory, particularly since new Trump-appointed justices Gorsuch, Kavenaugh and Barrett have made religion cases a high priority. Indeed, the Court recently agreed to hear 303 Creative LLC v. Elenis, a case brought by a Christian web designer who wants to make wedding announcement sites only for heterosexual couples. The case will address further the conflict between the designer’s Free Exercise rights and a law forbidding discrimination based on sexual orientation.
The Court’s decisions have fueled litigation and made the lower federal courts “a forum to hear the grievances of religious conservatives,” according to legal writer Ian Millhiser. For instance, a small Christian management company in Texas sued last year to uphold its workplace policies prohibiting gender non-conforming conduct in bathroom use, dress and grooming. And in March 2022, a Kansas teacher sued her school after it disciplined her for violating diversity and inclusion policies when she refused to refer to a student by a gendered, nonbinary, or plural pronoun. The teacher believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual person’s feelings, desires, or preferences.”
The Supreme Court is weakening the Establishment clause by allowing more government support for religion
In its interpretation of the Establishment clause, the Supreme Court appears intent on allowing greater government support for religion.
Thomas Jefferson famously claimed that Americans “‘built a wall of separation between the church and state” when they adopted the Establishment clause. But as Court observer Linda Greenhouse notes, politics has “populated the Supreme Court with Republican-appointed justices eager to elevate the presence of religion in the public square. . .” As a result, the wall of separation is becoming more porous.
The Court’s intentions are evident in the perennially controversial issue of government monetary aid to religious education. Traditionally, the Establishment clause barred taxpayer subsidy of religious education. But shortly after Justice Gorsuch joined the Court in 2017, the Court has edged toward a different view. Trinity Lutheran Church v. Comer addressed the legality of a state grant program to pay for playground renovations. Relying on long standing precedent, Missouri denied public funds to a church to upgrade its day-care center’s playground. The Supreme Court reversed this decision, holding that a church could not be denied a publicly available benefit simply based on its religious status. And because the government money would be used only for playground refurbishment– and not religious teaching– the aid was permissible.
The Court moved the needle further toward affirming state support of religious schools in Espinoza v. Montana Department (2020). In that case parents applied for scholarships to keep their children enrolled in the private Stillwater Christian School. The Montana legislature had passed a program to provide tax credits to individuals and businesses who donated to private, nonprofit scholarship organizations. Montana prevented scholarship recipients from using their scholarships at religious schools, based on the Montana constitution which forbade “direct or indirect” public funding of religiously affiliated educational programs.
Montana argued that this “no-aid” provision did not discriminate based on religious identity, but merely prohibited state funds supporting religious education, a position consistent with the Establishment clause.
The Supreme Court disagreed, ruling that the Establishment clause did not bar Montana’s scholarship program, even if it benefitted private religious schools. The Court went even further, deciding that Montana had violated the parents’ free exercise rights by excluding religious schools from a tuition-assistance program.
Supreme Court watchers are closely following another case involving taxpayer assistance to religious schools, Carson v. Makin. Amy Coney Barrett’s addition to the Court shortly before the 2020 election has heightened interest in this case.
In Carson the issue again involves state tuition assistance to private schools. Because not every school district in rural Maine has a secondary school, a district without its own high school may pay a student’s tuition at a secondary school outside the district, including at an “approved” private school. To be “approved,” however, a private school must be “nonsectarian in accordance with the First Amendment.” Maine forbade aid to religious schools to avoid violating the Establishment clause, and the lower courts agreed with its position.
The Supreme Court has not yet decided the case, but the parents seeking state aid for private religious education got a favorable reception at the December 8, 2021 arguments.
If the Court requires Maine to support private religious schools, public money could support school policies that many would disapprove. According to Professor Kimberly Wehle, writing in The Atlantic, “states and municipalities could be required to use taxpayer dollars to supplement strands of private religious education that exclude non-Christian or LGBTQ students, families and teachers.” One of the schools in the Carson case, Bangor Christian, has a policy that students who are transgender or openly gay may be suspended or expelled because of their sexuality or gender identity, and the school does not hire transgender or gay teachers. The other, Temple Academy, “will not admit a child who lives in a two-father or a two-mother family,” nor students who are transgender or gay. The school’s teacher employment agreement includes an acknowledgement that “God recognize[s] homosexuals and other deviants as perverted.”
“I am worried that this Supreme Court has moved in a direction that facilitates discrimination in new and dangerous ways, not just for LGBTQ people, but for women, for religious minorities, for all minorities,” says Jennifer Pizer, law and policy director for Lambda Legal. “The fundamental notion that none of us should be required to pay for other people’s practice of religion is about as basic as it gets, and yet we’re seeing, in these education contexts, that notion flipped on its head,” she adds.
According to Kevin Welner, a professor at the University of Colorado who studies educational policy and law, “We’ve never, in this country, had a complete wall of separation between church and state, but the current court has been issuing decisions that have reduced the establishment clause to little more than a shabby old picket fence.” He adds, “If the court keeps going in that direction, it is transformative. It does change the nature of society.”
So what did I learn teaching Sunday School?
I learned that the Supreme Court is changing the way the Free Exercise clause has traditionally been applied. Instead of requiring all citizens to follow laws of general application, the Court has been eager to create religious exemptions to certain laws, allowing believers to “opt out.” This is a departure from the dominant view that religious citizens in a democracy had to follow the law, despite an occasional conflict with their beliefs.
I also learned that the current Court is less likely to invoke the Establishment clause to prevent religion from seeping into public institutions. The weakening of the wall between church and state may lead to more government aid to private religious education.
One might ask how any Christian could oppose this trend. Shouldn’t all Christians be allowed to ignore laws that offend their beliefs? Shouldn’t all Christians welcome more government aid to religious organizations?
As I told the class, I wholeheartedly long for more religion in our common life–- as long as it’s my kind of religion. The religion I practice welcomes refugees, even if they aren’t Christian. The religion I practice doesn’t brand gay persons as sinful.
Unfortunately, the Court’s direction, intentional or not, has buttressed the position of religious conservatives. Should the Constitution allow wide swaths of Americans to invoke religious immunity from adhering to anti-discrimination laws enacted to enforce equal rights? Should taxpayer dollars go to support religious institutions whose policies some might find repugnant? As Jefferson wrote, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”
I fear all believers could be worse off if the government is allowed to choose sides in religion. That’s certainly true if we’re not on the side that gets chosen.