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Perspective: After a half-century, the Supreme Court is getting religious liberty right again

This court’s decisions suggest a welcome end to its top-down theorizing that twisted the founders’ intent

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The Supreme Court is seen at sundown in Washington, on Nov. 6, 2020.

J. Scott Applewhite, Associated Press

Over the past 50 years, the Supreme Court’s neglect of America’s best traditions of religious liberty, in favor of legally baseless standards, have stoked the cultural misunderstandings of religious freedom that we see today.

The American founders set religious liberty aside for constitutional protection by including two “religion” clauses in the Constitution’s First Amendment: the establishment clause, prohibiting a government-supported established religion, and the free exercise clause, protecting everyone’s right to exercise their religion.

In the 20th century, the Supreme Court started to interpret these clauses with very abstract theories: Judges were empowered to achieve a kind of “neutrality” between government and religion, and avoid the appearance of government “endorsing” religion. These up-in-the-clouds ideas confused the law because they had no roots in the reasons stated by the founders, nor did they have any roots in the practices of ordinary Americans that reflect our traditional commitments to flourishing religious exercise.

Those practices, and America’s founding regard for religious liberty, are now animating the Supreme Court’s interpretation of the First Amendment. Through four religious liberty cases, in a re-rooting of core American freedoms, the court this term ended longstanding distortions of First Amendment. It did so by relying on traditional understandings of the First Amendment’s religion clauses which were crafted to account for America’s long history of religious accommodation, the reality of pluralism and the unique role religion plays in securing self-government.

To understand the need for course correction, consider two key cases. In 1971, Lemon v. Kurtzman twisted the establishment clause into a tool to squelch all religion expression from public spaces in the name of “neutrality.” In 1990, Employment Division v. Smith twisted the free exercise clause to preserve this no-religion “neutrality” by allowing “neutral” political decisions to burden unpopular religious exercise.

 Decisions like these fly in the face of our country’s history and traditions — a legacy that sees unique virtue in religious liberty. To take one powerful example (of many): In his “Letter from Birmingham Jail,” the Rev. Martin Luther King wrote that religion is necessary in explaining why the rights of Americans rest on a higher power than the state, and therefore the state has no power to take them away.

The Rev. King rightly believed that when the faithful are at their best, their religious exercise serves as a “thermostat” that helps society uphold its highest virtues — not just a “thermometer” that reflects fashionable views. American self-government requires self-governing people, and as George Washington said, religious exercise is indispensable to that end.

The court’s decisions this term continue to re-anchor religious liberty in this traditional understanding. Lemon is formally abandoned. And while Smith has not yet been abandoned, the decision can no longer justify the government’s invocation of abstract “neutrality” to refuse accommodating longstanding religious practices. This is a new path, but one based on old ideas — ideas that, as Justices Samuel Alito, Stephen Breyer and Brett Kavanaugh, along with Chief Justice John Roberts, said in 2019, guarantee religious exercise out of “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”

The rights of the condemned played a major role in this reset. In Ramirez v. Collier, the court protected a death-row prisoner’s right to have his pastor lay hands and audibly pray over him before his execution. Texas refused Ramirez’s request, claiming that unsupported public safety concerns were “compelling” and that the state treated everyone “neutrally” by allowing no clergy in the death chamber. This neutrality-equals-no-religion approach was rejected by all but one of the justices. The court’s 8-1 decision relied on the brief submitted by my firm, the Becket Fund for Religious Liberty, to explain the rich tradition of clergy comforting people of all faiths on death row without incident. The court agreed that arguably one of the world’s oldest religious traditions — a hand in prayer when the knife falls — is protected under federal law.

The court also protected the raising of religious flags and public prayer in Shurtleff v. City of Boston and Kennedy v. Bremerton School District, respectively, by invoking American national traditions. In Shurtleff, Boston sought to exclude a flag with the Latin cross from flying in front of City Hall. And in Kennedy, a school district sought to end the employment of a high school football coach for praying on the 50-yard line. As the court explained, these exclusions stem from what Kavanaugh called Lemon’s “mistaken view” that religious “neutrality” requires expelling religion from public. Instead, the court said the First Amendment should be understood by its “terms and the traditions undergirding them.” Those traditions prohibit government efforts to stifle religious expression simply because an onlooker might feel offended. “Respect for religious expressions,” the Kennedy decision said, “is indispensable to life in a free and diverse republic.”

This same tradition of nondiscrimination animated the court’s decision on religious schools in Carson v. Makin. There, the court protected the right of religious schools to participate in tuition assistance programs. The state of Maine, relying on Lemon, had excluded religious schools because they taught religion. In the court’s words, however, this exclusion lacked any justification from a “historic and substantial” tradition. What mattered was that Maine had violated the centuries-old tradition of religious schools deciding, for themselves, how to religiously form their students and express their faith.

The court’s decisions this term suggest a welcome end to its top-down theorizing on religious liberty. Those impositions have exacerbated America’s cultural divides. By interpreting religious liberty from the bottom-up, and looking to longstanding American traditions, the court’s interpretation of the First Amendment is a basis for common ground.

With these recent rulings, the high court reiterates that traditions toward religious liberty should remind all Americans, not only of where they have long agreed, but also of the best ways in which they have handled disagreement.

William J. Haun is senior counsel at the Becket Fund for Religious Liberty and a nonresident fellow at the American Enterprise Institute. This commentary does not necessarily reflect the views of the Becket Fund for Religious Liberty or its clients.