Reviewing the Religion Cases of the 2021-22 Supreme Court Term: Part One

Editor’s Note: We invited Supreme Court expert David Ryden to explain and comment on the Court’s rulings in three recent First Amendment cases. Part one is offered today, and we will run part two tomorrow.

The results are in. With the conclusion of its most recent term, the conservative U.S. Supreme Court has indeed finally arrived. The overturning of Roe, the expansion of gun rights, an administrative law decision that dramatically constrains the power of the bureaucratic state . . . these have led court watchers to characterize this term as the most conservative since the reactionary Court of the 1930s goaded FDR into his ill-advised court packing plan. Adding to the conservative tenor of the term were a trio of cases dealing with the First Amendment religion clauses, all of which came down on the side of the pro-religion party. But unlike the decisions on abortion, guns, and administrative power, all of which marked a major shift in constitutional jurisprudence, the religion cases were in line with, and even the culmination of, a pro-religion trend that has been building on the Court under Chief Justice Roberts’ tutelage.

This Court is surely the most religion-friendly in modern history, especially if the religious claimants are of the evangelical Christian or more traditional Catholic variety. The Court has heard nearly a hundred cases pertaining to the religion clauses since the Warren Court’s first term in 1953. But while only 46% of the Warren Court’s decisions were favorable toward the religious side, that has risen to almost 87% under the Roberts Court. The most recent addition to the Court—the deeply devout evangelical Catholic Amy Coney Barrett—has solidified a Court that is solicitous of religious liberty and is much less concerned about breaches in the “wall of separation” between religious and governmental actors.

Christians of varying traditions are hardly of like mind when it comes to church-state relations. But the Court’s work in this area has broad implications for people of faith and the religious institutions to which they belong. It behooves us to spend some time reviewing the Court’s recent handiwork in this area and to consider the implications for Christians and the church.

The Question of Equal Access to Public Space. The most unremarkable of the three cases was Shurtleff v. Boston, a straightforward result as evidenced by the unanimous 9-0 vote. The case grew out of the city of Boston’s practice of freeing up one of the three flag poles in front of city hall for use by outside groups to display special flags. The conflict arose when Shurtleff, a conservative activist, applied to fly the Christian flag, and was denied on grounds that it could be perceived as a promotion of religion in violation of the Establishment Clause. The full Court sided with Shurtleff, holding that the city’s action represented a discriminatory suppression of a “religious viewpoint” that violated Shurtleff’s free speech rights.

The facts make the case a relatively easy one. The city had long allowed a wide range of private actors access to the flag pole, having received, and routinely approved, close to three hundred previous applications. Given that it had never rejected a single request before Shurtleff’s, it was clear that the city exercised no control over the substance of the message expressed by the flags. Since any message associated with the Christian flag could not be ascribed to the city as public speech, its refusal to grant permission to fly the flag amount to unconstitutional “viewpoint discrimination.” The Shurtleff decision was simply reiterating a well-established rule that religious people and organizations, like their secular counterparts, cannot be discriminated against for the content of their speech, even if religious in nature.

The Praying Football Coach. Kennedy v. Bremerton School District similarly turned on constitutional protections for religious speech, in this instance a public school football coach’s practice of taking to the field after the game to pray. Following complaints by some who lingered in the stands, the district and coach Joe Kennedy tried unsuccessfully to find a reasonable compromise. When Kennedy continued to pray and was subsequently fired, he responded with a lawsuit asserting both free speech and religious freedoms. The Supreme Court eventually sided with Kennedy by a 6-3 margin, along predictable ideological lines.

The particulars around Kennedy’s prayers and others’ participation in them were murky throughout, with the majority and dissenting blocs of justices disagreeing significantly over the nature of the prayers. But as was the case in Shurtleff, the majority found the prayers to be the coach’s private speech rather than public speech made in his capacity as coach. Because the speech couldn’t be credited to the school, the administration had a less compelling interest in limiting the speech as a possible violation of the Establishment Clause. The school could hardly be understood as endorsing his prayers, nor was there a serious threat of coercion. Acknowledging that others certainly would have seen and possibly even heard his prayers, the Court found that “secondary school students are mature enough … to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Even if some were offended by the prayers, the Court opined that learning to accept possibly offensive speech or prayers was important to the cultivation of pluralism and essential to a tolerant citizenry.

Public Funding of Parochial Schools. The most potentially far-reaching religion decision was Carson v. Makin, which originated in Maine and raised long percolating issues over the use of public funds for religiously based education. As one of the most rural states in the country, Maine has a number of areas that are too sparsely populated to run their own public schools. In such instances, the state provides tuition subsidies for families to send their kids to schools in adjacent districts. While the tuition program allowed for funds to go to either public or private schools, it explicitly excluded private religious schools from participation, asserting that their inclusion would unconstitutionally advance religion in violation of church-state separation. The Carsons were one of several families who sued the state, arguing that to deprive them of the use of their tuition benefit to give their kids a religious education infringed on their religious liberties.

The Court sided (by an identical 6-3 vote) with the families. The Court viewed the case as the natural extension of two other recent cases. In 2017, the High Court had ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer that the state of Missouri couldn’t explicitly exclude religious organizations from a public benefit program for which they were otherwise qualified—in that case one that helped nonprofits pay for playground resurfacing—purely by virtue of their religious identity. In 2020, the Court decided in Espinoza v. Montana Department of Revenue that Montana couldn’t exclude religious schools from receiving tax credit-funded scholarships under its school choice program. In both Espinoza and Carson, the Court held that while the state did not have to subsidize private education, once it did it could not exclude religious private schools from participation. Provided the government aid program was neutral on its face between religion and nonreligion, the state could not claim an Establishment violation. Since the tuition subsidies went to religious schools as a result of the independent choices of the family, Establishment Clause concerns did not apply, and religious schools’ inclusion was required as a matter of the free exercise clause.

Clarifying First Amendment Religion Law.  No other textual provision of the Constitution or jurisprudential question has proven more opaque or inscrutable than the First Amendment religion clauses. Since the Court entered the Establishment Clause fray in 1947, shelves of books and judicial opinions wrestling with the meaning of the religion clauses have failed to yield a coherent, consistent, or comprehensible doctrine. To the contrary, church-state law has been afflicted with a dizzying array of competing tests and standards, interpretative methods deeply at odds with each other, and alternative understandings of religion that cannot be reconciled. In short, First Amendment religion jurisprudence has long been a mess. Whatever one’s position on the tack taken by the Roberts Court on religion, it has undeniably engendered a much simpler, more coherent and readily discernible set of rules. In the wake of the latest trio of cases, this much can be concluded with some certainty:

• First, a single guiding principle now arguably cuts across both religion clauses and applies to most contexts in which questions about religion and the constitution arise. In short, the Constitution demands neutral or equal treatment of religion—between faiths but also between religion and non-religion—and prohibits hostile or discriminatory treatment of religious belief, religious actors, or religious institutions.

• Second, the long simmering tensions between the two religion clauses have been resolved in favor of religious liberty, to which concerns over church-state entanglement are now subordinate. In Locke v. Davey (2004), the Court upheld a state of Washington college scholarship program that disallowed students from using the scholarship to obtain a “devotional” degree. Then Chief Justice Rehnquist cited the “play in the joints” that meant while the Establishment Clause would have allowed Washington to include religious uses for the scholarships, the Free Exercise clause did not demand it. After Espinoza and Carson, Locke would not be decided the same way today.

• The long-observed prohibition against public funds flowing to “sectarian institutions” is no more. Even through the 2017 Trinity Lutheran case, many thought that, while funds could not be denied institutions based upon their religious identity, those funds could not be used for religious purposes (hence the funding of a parochial pre-school playground passed muster). That status/use distinction has been obliterated by Espinoza and Carson, cases in which the Court required public funding programs include schools whose activities included religious education.

• This Court is much less receptive to Establishment Clause claims based upon intangible harms such as coercion or offense resulting from a public prayer or religious display. Rather the Court is committed to an understanding of pluralism that presumes a tolerance of religious practice that otherwise might be found offensive.

In light of recent history, one ought not to take anything for granted when it comes to changes in the make-up of the U.S. Supreme Court. Nevertheless, the fact of the Court’s six-member pro-religion majority suggests the pro-religion turn on the First Amendment is likely to be with us for the foreseeable future. In a subsequent post, I will consider how Christians might think about these developments.