Key takeaways from recent court decisions:
- The current U.S. Supreme Court has ruled in favor of religion far more often than its predecessors.
- Prayers do not amount to institutes establishing a religion since it is no more coercive than other forms of expression.
- If the government can achieve its interests in a way that does not burden religion, it must do so.
- Government does not violate the Establishment Clause when it treats religious persons or organizations equally with secular ones and it violates the Free Speech Clause when it excludes them.
- According to the First Amendment, no one should be compelled to say things with which he or she does not believe nor agree.
Religion is part of people’s identity. It is not an accessory that may be changed or molded to the liking of the powerful. However, it can be easily violated any day in a personal, professional, or academic environment. Setting judicial precedents in support of religious freedom is the most powerful way to protect it. The good news is that the current U.S. Supreme Court has ruled in its favor far more often than its predecessors, as a study by Professors Epstein and Posner shows. It’s been a good six months for religious freedom! Let’s express optimism as we take a look at some of the recent favorable decisions.
Joseph Kennedy coaches the soccer team at Bremerton High School, a public school in Washington. After every game, he would kneel for a few seconds and give thanks to God in silent prayer and, even though he did not ask for it, some students would join him.
One day, the principal demanded Kennedy stop doing it because it could be seen as a school endorsement of religion and some spectators might be offended. Thus, it announced a ban on “demonstrative religious activities, readily observable by students and the attending public” and told the coach that he could pray in a “private place within the school building.” This meant that he had to go somewhere where no one could see him, treating prayer as an unlawful activity that the government can censor as coercive or inconvenient to the public. But the coach did not back down and ended up being fired.
His case went to the Supreme Court, which ruled in June 2022, that Kennedy’s prayer at the end of a game is protected by the First Amendment as a religious exercise and as private speech. It argued that the Establishment Clause must be understood through America’s history and tradition of religious pluralism and that religious expression cannot be prohibited in public life simply because some may find it uncomfortable. It also put an end to the Lemon test, a vague method that courts used to decide Establishment Clause cases.
This decision is of much interest to people who work for the government as it demonstrates that their prayers do not amount to institutes establishing a religion since it is no more coercive than other forms of expression. Likewise, it points out that excluding only religion from acceptable forms of public expression is unconstitutional, as to do so would imply holding that there is something inherently wrong and offensive about religion itself.
Since 1873, Maine’s aid program has allowed residents in school districts without high schools to pay tuition at the public or private school of the parent’s choice. However, in 1980, parents were prohibited from using this program to send their children to private schools deemed “sectarian”. Consequently, parents must either pay tuition at a religious school out of their own pocket or send their children to a school they did not wish to choose. In turn, religious schools would have to cease to be religious or lose public funding.
In June 2022, the Supreme Court held, in a 6-3 decision, that the exclusion of faith-based schools from a tuition assistance program violated the Free Exercise Clause of the First Amendment. Thus, it ruled that denominational schools cannot be required to shed their religious identity in order to participate in aid programs and that any education funding policy that excludes these schools is discriminatory and unconstitutional.
In 2018, the city of Philadelphia decided to bar Catholic Social Services from serving needy children through its foster care program, even though no one had ever filed a single complaint about it before. What was the reason then? Just because it does not place foster children with same-sex couples, since Christian doctrine states that marriage is the union of one man and one woman.
In a unanimous judgment on June 2021, the Supreme Court ruled that Philadelphia’s refusal to contract with the catholic agency unless it agrees to certify same-sex couples as foster parents violate the First Amendment. This is so because, following the Free Exercise Clause, providers of adoption and foster care services are free to develop in accordance with their religious beliefs.
Additionally, the majority of the justices expressed their disagreement with Employment Division v. Smith, a precedent that states that the First Amendment is not violated by “neutral and generally applicable” laws with an incidental burden on religion. In Fulton, the Court reminded us that if the government can achieve its interests in a way that does not burden religion, it must do so.
This decision is of particular interest to service providers, as it can be used as a reminder that it is unconstitutional to force someone to provide services against their beliefs, having noted that protection against “harm to the dignity” of same-sex couples does not justify denial of religious accommodations.
Many religions observe sacred days of rest, in the case of Adventists, it is Saturday. Ed Hedican is one of them and as such, requested a religious accommodation after Walmart offered him an assistant manager position. Although he offered to work any other day of the week, including Saturday after sunset, evenings, and 12-hour shifts, Walmart refused and rescinded the job offer.
Title VII of the Civil Rights Act protects employees from discrimination based on factors such as religion, race, and sex, however judicial precedent Trans World Airlines v. Hardison stated that employers are not required to an “undue burden” to accommodate their employees, allowing them to dismiss them for even the slightest inconvenience, as might be the rearrangement of work shifts. However, when Hedican’s case reached the Supreme Court, the petition was granted, the judgment was vacated and the case was remanded for further consideration. This case should be in the sight of all those workers who want to make their work compatible with their faith.
Texas execution protocol states that clergy may not pray aloud or touch death row inmates. This is precisely what John Henry Ramirez wanted before he died, to have a Southern Baptist pastor lay hands on him and pray aloud in his final moments.
The Supreme Court ruled in his favor in an 8-1 vote, arguing that the inmate’s right to pray and the presence of clerical prayer at executions stems from a historical tradition that dates back even before the founding of the country. Touch and spoken prayer are fundamental to many believers and do not lose their religious significance in the context of end-of-life pastoral care; rather, they are common practices at such times.
Moreover, it affirmed that the allowance of clergy to audibly and physically pray falls under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, the ones that protect prisoners’ human dignity by ensuring their religious liberty and prohibiting discrimination. The Court also held that these restrictions substantially burden the prisoner’s religious exercise and are not the least restrictive means of furthering the state’s compelling interests since Texas failed to demonstrate that they met strict scrutiny.
Over 12 years, the Boston City Council has approved 284 requests to display flags of several private groups alongside the U.S. and Massachusetts flags, without denying a single request. However, when Camp Constitution, a Christian religious group, asked to display theirs, their request was denied. In May 2022, the Supreme Court unanimously ruled that the city’s decision violated the First Amendment’s free speech clause. Judge Kavanaugh affirmed that the government does not violate the Establishment Clause when it treats religious persons or organizations equally with secular ones and that it violates the Free Speech Clause when it excludes them.
Justice Breyer noted that the city discriminated against them because of their religious viewpoint since it had allowed secular flags to be flown on the same flagpole and Justice Alito argued that the Court should adopt a narrower test to distinguish governmental from private expression and that, in this case, the flag raising was not government speech, therefore, Boston violated the First Amendment right to freedom of religious exercise.
Meriwether v. The Trustees of Shawnee State University (Mar 26, 2021) – (US Court of Appeals for the Sixth Circuit) *Note this is not a Supreme Court decision.
A male student at Shawnee State University approached Dr. Nicholas Meriwether after class and demanded that he should refer to him with female titles and pronouns as he identified as transgender. The philosophy professor replied saying that he referred to students based on their biological sex but that, in this case, he could call him by whatever name the student preferred, but would not use alternate pronouns. Although the university initially approved this arrangement, upon the student’s insistence, it punished Dr. Meriwether by placing a written warning in his personnel file and threatening further corrective action.
Calling a man a woman or vice versa contradicts the professor’s religion who, as a Christian believes that God created human beings as male or female and that a person’s sex cannot change. In March 2021, the Court of Appeals for the 6th Circuit ruled in favor of the professor and the university agreed to pay $400,000 in damages and attorneys’ fees, not to force Dr. Meriwether to use pronouns and titles different from the biological sex of students and to remove the discipline from his file.
The Court noted that if professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. In addition, according to the First Amendment, no one should be compelled to say things with which he or she does not believe nor agree. Moreover, beliefs should not be contradicted just to keep a job.
As we have seen, cases on religious freedom cover a wide range of beliefs and practices, but all share a common goal, that freedom of exercise and expression be on a safe ground so that citizens can live according to their religion. It seems that the Supreme Court supports this goal.
Religious Freedom can prevail. We just have to stand up!
Links to cases cited above:
- Kennedy v. Bremerton School District, 597 U.S. (Jun 27,2022)
- Carson v. Makin, 596 U.S (Jun 21, 2022)
- Fulton v. City of Philadelphia, 593 U.S (Jun 17, 2022)
- Hedican v. Walmart Stores East, L.P. (Mar 21,2022)
- Ramirez v. Collier, 595 U.S (Mar 24, 2022)
- Shurtleff v. City of Boston, 596 U.S. (May 2, 2022)