U.S. Supreme Court

Chemerinsky: Supreme Court reflects nation’s deep divide over Constitution and religion

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Erwin Chemerinsky. Photo by Jim Block.

There is a deep political divide on the U.S. Supreme Court, and in the country, over the Constitution and religion. Liberals long have interpreted the establishment clause of the First Amendment as best understood through Thomas Jefferson’s metaphor that there should be a wall separating church and state. For decades, this was the approach taken by the Supreme Court, but conservatives reject this notion and believe the government violates the establishment clause only if it coerces religious participation or gives assistance that favors some religions over others.

Conservatives favor strong protection of free exercise of religion, including providing exemptions from laws prohibiting discrimination. Liberals, by contrast, favor the court’s adherence to its decision in Employment Division v. Smith—an opinion written by Justice Antonin Scalia—which held that the free exercise clause is not a basis for exemptions to laws of general applicability that were not motivated by a desire to infringe religion.

The court has four important cases about religion on its docket. One was decided last month, and two others will be decided later this term, one of which already has been argued. The remaining case to be argued this term, Kennedy v. Bremerton, will be heard on April 25. A fourth case is scheduled to be heard in October. Each of these cases, individually and especially together, could bring about major changes in the law concerning the Constitution and religion.

Ramirez v. Collier

John Ramirez was convicted of murder and sentenced to death in Texas, which carries out executions by lethal injection. He wanted his pastor, who was to be with him in the death chamber, to be able to touch him at the time of the execution and to be able to pray out loud. Texas forbids both the laying of hands and audible prayer.

The case was decided on March 24, and the court ruled 8-1 in favor of Ramirez. Chief Justice John Roberts wrote the opinion for the court and only Justice Clarence Thomas dissented. The court based its decision on the Religious Land Use and Institutionalized Persons Act, which says, in part, that the government must meet strict scrutiny if it significantly burdens the religious freedom of institutionalized individuals.

The court said the government failed to show that prohibiting touching or vocal prayer was necessary to achieve its goal of carrying out executions. The court pointed to a long history of allowing prayers by clergy at the time of executions and found that prohibiting touching was not the least restrictive way of meeting the state’s interests. The court thus concluded that Ramirez was likely to prevail on the merits of his claims that restrictions on religious touch and audible prayer in the execution chamber would impermissibly burden his religious freedom.

Carson v. Makin

There are parts of Maine that are too rural to support public school systems. In these areas, school administrative units provide money for parents to send their children to private school. State law requires that the funds be used for secular schools; they cannot be used for “sectarian” education. Maine says that its goal is to provide a free secular education for every child in the state. Also, it does not want to use tax dollars to support religion. About 5,000 children are affected.

Two religious schools and two parents brought a challenge arguing that prohibiting the use of funds in religious schools violates free exercise of religion. They rely on two recent Supreme Court cases, Trinity Lutheran Church of Columbia v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), which found that states violated free exercise of religion in restricting government aid to religious schools that was available to secular schools.

These rulings were a major change in the law, representing the first time the court found that the Constitution required government aid to religious institutions. For decades, the issue before the court was determining when the government may provide assistance to religious schools without violating the establishment clause of the First Amendment. The question now is, under what circumstances must the government provide aid because of the free exercise clause?

Carson v. Makin was argued on Dec. 8, and it appears that the conservative majority is poised to rule against Maine and uphold the free exercise claim. If so, this will lead to a great deal more litigation and raise questions including, for example, when a public school system funds charter schools, must it also subsidize religious charter schools?

Kennedy v. Bremerton School District

In the early 1960s, the Supreme Court held that prayer in public schools, even voluntary prayer, violates the establishment clause of the First Amendment. The court has adhered to this for 60 years. In Lee v. Weisman (1992), the court held that clergy-delivered prayers at public school graduations are unconstitutional. In Santa Fe Independent School District v. Doe (2000), the court ruled that student-led prayers at high school football games violate the First Amendment. Of course, in all these instances, the restrictions on prayers limit the speech of the teachers and students who want to engage in prayer.

Joseph Kennedy was a football coach at a Bremerton, Washington, public school. After games, Kennedy, a devout Christian, would kneel at the 50-yard line and engage in a prayer for about 30 seconds. This necessarily meant that spectators—students, parents and community members—would observe Kennedy’s religious conduct. Several games into his first season as coach, players began to join him and this grew to include a majority of the team. Sometimes opposing players were invited to join as well. A parent complained to the principal that his son “felt compelled to participate” in Kennedy’s religious activity even though he was an atheist, because “he felt he wouldn’t get to play as much if he didn’t participate.”

Over time, Kennedy began giving short midfield motivational speeches after the games. Students, coaches and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy. He then raised a helmet from each team and delivered a message containing religious content including prayers. The school district ordered that Kennedy cease his religious activities. He initially complied, then openly defied the order and was suspended.

Both the federal district court and the Ninth Circuit ruled against Kennedy’s claims that his free speech and free exercise rights were violated. The case has potentially broad implications. If Kennedy prevails, would this mean that any public school teacher would have the right to lead students in prayer? What, then, if anything, would be left of the more than half century of law prohibiting prayers in public schools and recognizing that even “voluntary” prayer is inherently coercive in the school context?

303 Creative v. Elenis

In addition to these three cases that will be decided this term, the court already has a major case about free exercise of religion and freedom of speech on the docket for next term. 303 Creative v. Elenis involves a business in Colorado that designs websites. Lorie Smith, the proprietor, wishes to design websites for weddings, but not for same-sex marriages. The Colorado Anti-Discrimination Act prohibits discrimination based on sexual orientation, among other grounds.

Smith claims that to force her to design a website for a same-sex wedding violates her free speech and free exercise of religion. Although the petition for a writ of certiorari included both claims and expressly asked the court to overrule Employment Division v. Smith, the court granted review on this issue: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The context, however is clear: May a business refuse to serve customers based on the religious beliefs of its owners?

This, of course, was the issue in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which involved a baker who refused to design or bake a cake to celebrate a same-sex wedding. The court decided in favor of the baker on narrow grounds without reaching the underlying questions of whether the First Amendment protects a right to discriminate in violation of state law.

There always is a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. For over half a century, the court has stressed that prohibiting discrimination is more important than protecting freedom to discriminate. But the conservatives on the court may well change that when the discrimination is based on the religious beliefs of a business owner.

In conclusion

For decades, the Supreme Court took a robust approach to the establishment clause and provided relatively weak protections under the free exercise clause. Now, though, the court is taking the exactly the opposite course, finding little that violates the establishment clause and creating robust protections under the free exercise clause. The implications of this shift are enormous.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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