Religious freedom cases now feature prominently on the Supreme Court docket. In the past five years alone, the Court has thrown out Covid-19 restrictions on religious worship, rejected the exclusion of Catholic charities from Philadelphia’s foster care system, reaffirmed that courts cannot hand over questioned religious school employment decisions, struck down (twice) the exclusion of religious schools from public benefit programs, and ruled that Colorado had unconstitutionally discriminated against a baker who refused to arranging same-sex marriages. And, apparently, the court is just getting started. This term, he is reviewing several important religious liberty cases, and he recently agreed to consider another upcoming term.
Many recent religious liberty rulings by the Court touch on a similar theme: that the First Amendment requires government neutrality toward religion, that it prohibits government from disfavoring believers or religious institutions. , to silence religious discourse and suppress religious behavior. So why do government actors persist in doing these things, requiring repeated corrective actions from the Court?
Part of the fault lies with the Supreme Court itself. Despite repeating, on a case-by-case basis, that the Constitution requires government neutrality toward religion, the Court stubbornly failed to weed out an undergrowth of older precedents that arguably suggest otherwise. Bureaucrats and judges cling to these outdated precedents, using them to mask their confusion, ignorance or overt animosity towards believers and religious institutions.
This term, the Court has given itself three opportunities to put an end to it all by definitively rejecting old misinterpretations of the Establishment Clause of the First Amendment that can be construed as endorsing religious discrimination. The first one, carson v. Doargued in December, challenges Maine’s exclusion of faith-based schools from a tuition assistance program for high school students living in rural school districts. carson asks the Court to reaffirm what it has already made clear twice: the First Amendment prohibits states from excluding religious schools from public benefit programs, including private school choice programs. Even so, Maine points to language in past rulings that it says creates loopholes for it to discriminate against religious schools and students who wish to attend them. Rather than ignoring, narrowing, or singling out these rulings, the Court should explicitly overrule them and fill in the gaps, eliminating the confusion it itself created and paving the way for the expansion of parental choice to states. -United.
But carson is arguably the most important religious freedom case of this quarter, two others ring on a similar theme. Today, the Supreme Court will hear arguments in kennedy v. Bremerton School District, a case challenging a high school’s firing of a football coach for praying on the field after games. The school says it had no choice but to fire coach Joseph Kennedy when he refused to stop praying, pointing to prior precedents that sow confusion and discrimination as justification for his action. Specifically involved in kennedy is the so-called approval test, a doctrine the Supreme Court coined to distinguish between protected private religious expression and constitutionally forbidden religious expression of government.
Under this test, the constitutionality of the school’s dismissal decision hinges on whether a “reasonable observer” would think the district approved of Kennedy’s postgame prayers by authorizing them. The test is totally unenforceable as a legal standard. After all, no one knows what the “reasonable observer” thinks of Coach Kennedy’s prayer. The reasonable observer is a hypothetical person with hypothetical views – a vessel to be filled with the perceptions (or misperceptions) of government officials, including judges. Unsurprisingly, the reasonable observer often does his job poorly, and misguided fears of endorsing religion lead unhappy or hostile government actors to suppress it.
Consider a few of the many examples from the public school context alone, listed in an amicus brief filed on behalf of Notre Dame’s Religious Liberty Initiative: A student was suspended for saying “to your wishes” when his classmate sneezed. A manager handed out a list of unacceptable holiday items, including candy canes, reindeer, and red and green colored items. A second-grader was forbidden to read his Bible in his spare time. A CM2 student was forbidden to choose God as an idol for a school assignment. (Michael Jackson was an acceptable substitute.) One teacher asked a Catholic student to wash her Ash Wednesday ashes, and another forced a Muslim student to remove her hijab.
Across the country, public school administrators have sterilized public schools of anything religious — even if they are entirely private — in the name of avoiding any perceived endorsement of religion. And in applying the approval test, courts often come to conflicting conclusions about whether the First Amendment requires these actions or prohibits them. For example, federal courts have ruled that the Constitution allows public school choirs to perform religious hymns in Texas but not New Jersey, and they have found that graduate students can refer to God in commencement speeches. high school in Florida but can be punished for doing so in Colorado.
In other words, Coach Kennedy’s plight is all too common. Indeed, the Court is considering another case which partly revolves around the endorsement test. Shurtleff v. Boston asks whether Boston violated the First Amendment when it denied “Camp Constitution”‘s request to fly its “Christian flag” (which includes a Latin cross) in front of City Hall. Between 2005 and 2017, the city flew 284 flags representing community groups as part of a program that aims to “foster diversity and build and strengthen connections among Boston’s many communities.” Boston never turned down a request to fly a private flag until Camp Constitution requested it.
The city invokes the endorsement test to justify this decision, arguing that, if it lets Camp Constitution fly the flag, a casual passerby might believe that the city endorses the religion. (He apparently has no such worries about flying the Boston flag, which says – in Latin – “God be with us as he was with our fathers”, or the Turkish flag, which represents the Islamic star and crescent.) Oral argument, held in January, suggested the judges were unconvinced by Boston’s endorsement concerns. Even liberal justices called Boston’s decision a “mistake.” And, when Boston’s attorney argued that “the city doesn’t want to be accused of endorsing a religion,” Judge Brett Kavanaugh replied, frustrated, “exactly.”
Judge Kavanaugh is right. None of this has anything to do with a proper understanding of our Constitution. The Constitution does not authorize, let alone require, the government to discriminate against religious expression, conduct, or institutions. The opposite is true: Camp Constitution has as much right to its flag as any secular community group; Coach Kennedy has as much right to pray in public as in private; primary school students have as much right to read the Bible at recess as they do Harry Potter; and students participating in Maine’s Parental Choice Program have as much right to attend St. Dominic Academy as Phillips Exeter Academy. The Court should take advantage of the three opportunities it has given itself in this mandate to “exactly” clarify all these things.
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