In one of the most significant Supreme Court terms in memory, in which big wins came down on gun rights and abortion and the environment, conservatives also claimed convincing victories in the three big religious liberty cases that were on the 2021 docket.
In May, the Court, by a 9–0 vote, affirmed the right of a Christian group to fly a Christian flag in front of a municipal building – Boston’s city hall — while conducting a rally. And in the last two furious weeks of the term, the justices delivered two more victories for religious liberty, both by 6–3 tallies. In Carson v. Milik, the Court ruled if a state or local government (Maine, in this case) pays tuition for certain students to attend private schools, it is discriminating against religion if it does not also allow families to use taxpayer funds to pay for religious schools. A few days later, also by a 6–3 vote, the Court ruled that a public-school football coach could pray, on the football field, after games in which he coached, and not violate the Constitution’s Establishment Clause.
The survey, written before Barrett had been long on the bench, called those five “clearly the most pro-religion justices on the Supreme Court going back at least to World War II.”
Significant in two of the three rulings is the beating taken by a 50-year-old precedent-setting case still on the books that formerly governed application of the Establishment Clause in religious freedom disputes. A 1971 ruling, Lemon v. Kurtzman, called, unironically, the Lemon test, is a three-pronged guideline in which a contested display, motto, or activity, in order to be constitutional, must have a secular purpose, must not principally advance or inhibit religion, and cannot induce an excessive government entanglement with religion.
Justice Neil Gorsuch, writing for the majority in the “praying coach” case, Kennedy v. Bremerton School District, said Lemon’s “grand unified theory” for adjudicating Establishment Clause claims had sown confusion and contradictory opinions since the day it was handed down and wasn’t even applied to the coach ruling. In the Boston flag case, Shurtleff v. City of Boston, Gorsuch, again, in his own concurrence, complained that Boston employed Lemon, a “one size fits all test for resolving Establishment Clause cases,” to keep the Christian flag off its city pole. Wrote Gorsuch:
To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.
The demise of Lemon, should it remain interred, will be celebrated by all conservatives invested in protecting religious freedom from overzealous government officials and lawyers who see Christians attempting to “establish” religion whenever they, as citizens, try to fly a flag or enact a similar public display of their faith on government property or access government benefits available to nonreligious parties.
These three cases continue an impressive winning streak for religious freedom in the nation’s highest court. In the last few terms, among other cases, the Court has ruled that a Catholic adoption agency in Philadelphia, in defiance of city rules and in compliance with its religious tenets, could refuse to place children with same-sex couples. It has stipulated that the state of Montana, when it doled out tax-credit-funded scholarships under its school-choice program benefits, could not deny the same benefits to religious schools. Likewise in Missouri, a Lutheran school had its religious liberty violated when it was not permitted to access government funds, to resurface a playground, that were doled out to nonsectarian nonprofits. A number of cases held that employers with religious objections to contraception did not have to include birth control coverage in their companies’ health plans, contra an Obamacare stricture. Teachers in Catholic schools in California sued their employers for job discrimination because they were fired, but the Court ruled that churches and religious groups, as per the “ministerial exemption,” were free to hire or fire employees involved in religious work sans government interference.
Plus, during the pandemic, the Court, previously deferential to health authorities and government in cases involving COVID-inspired restrictions, stepped in numerous times to overturn governors’ limitations on houses of worship. Some credit this change of course to Justice Amy Coney Barrett, for soon after her arrival on the Court, restrictive laws in New York, Colorado, and New Jersey were nixed by SCOTUS, and in five instances where the Ninth Circuit Court of Appeals upheld California Gov. Gavin Newsom’s curbs on religious activities, the Court struck them down as well.
This clearly is a Supreme Court interested in protecting Americans’ religious freedom. The difference between it and previous Courts is stark. A study, conducted by Lee Epstein and Eric A. Posner and published in the Supreme Court Review, analyzed every Free Exercise and Establishment Clause case argued before the high bench from 1953 to 2020. That’s 95 cases, or about 1.4 per term. The authors found that the court overseen by Justice Earl Warren, from 1953 to 1969, voted in favor of religion but 46 percent of the time. That number rose steadily through subsequent iterations of the Court, to 51 percent during the Burger Court (1969–1986), to 58 percent when William H. Rehnquist was chief justice (1986–2005), to now 81 percent under Chief Justice John Roberts (2005–).
The sorts of religious cases have also changed over the years. In the Warren Court, most of the rulings in favor of religion benefited minority or non-mainstream practitioners, especially dissenting Christian groups — Seventh-Day Adventists, Amish — while the Roberts Court has heard mostly religious claims brought by mainstream Christians. In explanation, Epstein and Posner write, “One way to think about this pattern is that the Roberts Court extended the Warren Court’s protections for minority religions so as to encompass majority religions as well. The Roberts Court is pro-mainstream religion, and more pro-mainstream Christian than the Warren Court, but not exclusively pro-mainstream.”
Another way to think about it is, the Roberts Court is merely fixing judicial overreach against mainstream Christians in decisions handed down in the 1960s, 1970s, and 1980s, in which prayer was banned from schools, religious displays on public land were ruled unconstitutional, and religious citizens were denied government benefits that were made available to secular parties.
This shift in attitude toward religious freedom can clearly be credited to Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Gorsuch, and Roberts. The survey, written before Barrett had been long on the bench, called those five “clearly the most pro-religion justices on the Supreme Court going back at least to World War II.” Three of the six justices commonly considered conservative were appointed by Donald Trump.
Having taken a break from wedding vendor cases this past term, the Court will once again venture onto that troubled terrain next term when it listens to the pleas of a Colorado custom web designer who is prohibited, by state statute, from limiting her business to practitioners of traditional marriage. The Court will consider her case only on free-speech grounds, however, and not on religious liberty grounds.