Despite reiterating, in case after case, that the Constitution demands government neutrality toward religion, the Court has stubbornly failed to clear away an undergrowth of older precedents that arguably suggest the opposite. Bureaucrats and judges alike cling to these outdated precedents, using them to mask their confusion, ignorance, or outright animus toward religious believers and institutions.
Religious-liberty cases have come to feature prominently on the Supreme Court’s docket. In the past five years alone, the Court has rejected Covid-19 restrictions on religious worship, disallowed the exclusion of Catholic Charities from Philadelphia’s foster care system, reaffirmed that courts may not second-guess religious schools’ employment decisions, invalidated (twice) the exclusion of religious schools from public-benefit programs, and held that Colorado unconstitutionally discriminated against a baker who refused to cater same-sex weddings. And, apparently, the Court is just getting started. This term, it is considering several important religious-liberty cases, and it recently agreed to consider another next term.
Many of the Court’s recent religious-liberty decisions sound a similar theme: namely, that the First Amendment requires government neutrality toward religion—that it prohibits the government from disfavoring religious believers or institutions, from silencing religious speech, and from suppressing religious conduct. So why do government actors persist in doing these things, necessitating the Court’s repeated corrective action?
Part of the fault lies with the Supreme Court itself. Despite reiterating, in case after case, that the Constitution demands government neutrality toward religion, the Court has stubbornly failed to clear away an undergrowth of older precedents that arguably suggest the opposite. Bureaucrats and judges alike cling to these outdated precedents, using them to mask their confusion, ignorance, or outright animus toward religious believers and institutions.
This term, the Court has given itself three opportunities to put a stop to all this by definitively rejecting older, erroneous interpretations of the First Amendment’s Establishment Clause that can be read to countenance religious discrimination. The first, Carson v. Makin, argued 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 twice made clear: the First Amendment forbids states from excluding religious schools from public-benefit programs, including private school-choice programs. Despite this, Maine points to language in prior decisions that it argues create loopholes permitting it to discriminate against religious schools and the students who wish to attend them. Rather than ignoring, narrowing, or distinguishing these decisions, the Court should explicitly overrule them and close the loopholes, thus eliminating the confusion that itself has created—and clearing the path for the expansion of parental choice in the U.S.
Though Carson is arguably the most important religious-liberty case this term, two others sound a similar theme. Today, the Supreme Court will hear argument in Kennedy v. Bremerton School District, a case challenging a high school’s termination of a football coach for praying on the field after games. The school claims that 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 to justify its action. Specifically at issue in Kennedy is the so-called endorsement test, a doctrine that the Supreme Court invented to distinguish between constitutionally protected private religious expression and constitutionally prohibited government religious expression.
