The Supreme Court came together on religion this term. Then, it fell apart
It was conservative versus liberals in the Supreme Court’s final three religion-related rulings of the term
Earlier this year, as Republicans and Democrats clashed over Christian nationalism, religious exemption requests and access to communion, the Supreme Court showed that it’s still possible to tame the partisan tensions suffusing religious freedom debates. Its rulings in the term’s first two religion cases were unanimous or nearly so, and featured a shared vision of what the country owes to people of faith, including those on death row.
But in June, as the court wrapped up its latest term, that cordial streak came to a screeching halt. The final three rulings in faith-related cases pitted the court’s conservative justices against its liberals; each ended with a 6-3 vote.
In addition to having different ideas about how the cases on school funding, abortion rights and school prayer should have turned out, the two camps disagreed on what was at stake. In their dissents, the liberal justices repeatedly criticized the conservatives for downplaying each decision’s potential impact on the country as a whole.
“The court relies on an assortment of pluralities, concurrences and dissents by members of the current majority to effect fundamental changes in this court’s religion clauses jurisprudence, all the while proclaiming that nothing has changed at all,” wrote Justice Sonia Sotomayor in her dissent in the praying football coach case.
Meanwhile, in the school prayer and funding decisions, the conservative justices claimed to be upholding the status quo, as Sotomayor described.
Although it’s common for the court to divide along ideological lines in contentious religious freedom cases, liberal justices have joined with conservatives more often than not in recent years, and there were no dissents in the court’s biggest religion case in 2021. This term’s acrimonious ending may signal that the gap between conservative and liberal conceptions of religious issues is growing — and that it may soon be too wide to overcome.
Here’s a deeper look at the Supreme Court’s latest faith-related rulings and what they tell us about church-state conflict still to come:
Carson v. Makin
In a decision released June 21, the Supreme Court made it more difficult for states to keep public education money away from private religious schools.
Justices in the majority said that a Maine law preventing students at sectarian schools from participating in a tuition assistance program violated the First Amendment’s free exercise clause.
“The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” Roberts wrote.
“We have repeatedly held that a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits,” Roberts wrote.
The court’s three liberal justices dissented, arguing that the majority had ignored or undervalued the clear distinctions between Carson v. Makin and previous funding cases. There’s a difference between preventing religious schools from receiving public money simply because they are religious and preventing them from accessing public money because they would use the funds for religious activities, Justice Stephen Breyer said.
“It is religious activity, not religious labels, that lies at the heart of this case,” he wrote in his dissent.
Although the Supreme Court’s decision was a clear victory for religious schools, it may not do much to change the situation on the ground in Maine, as University of California, Davis law professor Aaron Tang pointed out in a column for The New York Times. Some Christian schools have said they will refuse newly accessible public money, since institutions that receive the funds have to abide by LGBTQ anti-discrimination rules.
“The two religious schools at issue in the Carson case, Bangor Christian Schools and Temple Academy, said that they would decline state funds if ... accepting such funds would require them to change how they operate or alter their ‘admissions standards’ to admit LGBTQ students,” Tang wrote.
The nondiscrimination rules and related efforts to protect LGBTQ rights could lead to additional lawsuits, legal experts said. In other words, the Carson v. Makin case likely won’t be the last we hear from the Supreme Court on the rights of religious schools.
Dobbs v. Jackson Women’s Health Organization
The Supreme Court’s highly anticipated abortion ruling finally came on June 24. For abortion-rights opponents, the decision was worth the wait.
The justices voted 6-3 to uphold a Mississippi policy banning most abortions after the 15th week of pregnancy. More importantly, five justices voted to overturn Roe v. Wade and return control of abortion access to individual states.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” wrote Justice Samuel Alito for the majority.
In a concurring opinion, Roberts wrote that the court could have — and should have — upheld Mississippi’s abortion restrictions without overturning Roe v. Wade.
“The court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” he said.
The court’s three liberals co-authored a dissent in which they chastised their colleagues for throwing out the careful balance that previous decisions struck between the rights of women and the rights of states.
“Today the court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of,” they wrote.
In anticipation of the Roe’s fall, several states adjusted their abortion policies to greatly reduce access to abortions, the dissent said, noting that, moving forward, many women will have no choice but to carry even dangerous pregnancies to term.
“Across a vast array of circumstances, a state will be able to impose its moral choice on a woman and coerce her to give birth to a child,” the liberal justices wrote.
Although the case didn’t involve a religious freedom claim, faith groups agreed that it was morally — and religiously — significant. Several religion-related organizations filed briefs with the Supreme Court explaining their views on abortion rights and even more issued statements after the ruling was handed down.
Some of the statements from abortion rights supporters highlighted the opportunity to use religious freedom law to push back against abortion restrictions. For example, people of faith who belong to a religion that requires abortion under certain circumstances could say that restrictions interfere with their religious exercise. Legal experts previously told the Deseret News that such lawsuits have the odds stacked against them in the courts.
Kennedy v. Bremerton
The Supreme Court resolved its final religion case of the term on June 27, ruling that a football coach at a public high school can pray at the 50-yard line after games.
The case stemmed from a dispute between coach Joe Kennedy and his former employer, Bremerton School District in Washington state. Kennedy claimed that school officials trampled his religious exercise and free speech rights when they asked him to stop praying, while officials said his prayers violated the First Amendment’s establishment clause.
The court’s conservative majority said officials’ fears were unfounded and that praying on the field near students doesn’t violate previous rulings barring schools from holding daily Bible readings or having a member of the clergy pray during graduation ceremonies. Kennedy has a right to pray during the same period of time that other coaches are checking their phones or visiting with friends, wrote Justice Neil Gorsuch in the majority opinion.
“This case looks very different from those in which this court has found prayer involving public school students to be problematically coercive,” he said. “The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate.”
As in Carson v. Makin, the three liberal justices took issue with the majority’s description of the conflict. They said school officials were right to be worried about how the coach’s prayers would affect young, impressionable students.
“This decision does a disservice to schools and the young citizens they serve, as well as to our nation’s longstanding commitment to the separation of church and state,” wrote Sotomayor in her dissent, which was joined by Breyer and Justice Elena Kagan.
A variety of organizations, including some faith groups, echoed the dissenters’ concerns in their statements on the case, predicting that the majority opinion would lead to more religion-related conflict in classrooms across the country.
“This court pays lip service to religious freedom but throws out any concern about avoiding government pressure on students,” said Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, in a statement.
But other groups celebrated the ruling and said all Americans are better off when religious speech enjoys strong protections.
“We are grateful that the Supreme Court recognized what the Constitution and law have always said — Americans are free to live out their faith in public,” said Kelly Shackelford, president, CEO and chief counsel for First Liberty, which represented Kennedy in the case.