This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Erwin Chemerinsky is the dean and Jesse H. Choper distinguished professor of law at University of California, Berkeley School of Law. Howard Gillman is the chancellor and a professor of political science and law at University of California, Irvine. Their book, “The Religion Clauses: The Case for Separating Church and State,” will be published by Oxford University Press in September.

Although there were a number of surprising victories for liberal positions in the 2019-20 Supreme Court term, there was one area where the conservative position consistently prevailed: the protection for religion.

It is becoming increasing clear that longstanding principles concerning the First Amendment’s religion clauses are being discarded by the conservative justices. These justices are bent on eliminating many of the limits on direct government involvement in religious activity. They are loosening restrictions on the use of tax dollars to support religious practice and instruction and, indeed, requiring government financial support for religious institutions. They are eager to exempt private religious individuals from the need to comply with general laws promoting public health and protecting against discrimination.

A year ago, the court signaled its shift with regard to the establishment clause. This term, a number of cases focused on free exercise. And the coming term again will give the conservative justices the opportunity to make even more dramatic changes.

Establishment clause

For more than 70 years since Everson v. Board of Education, a majority of the court has agreed that the establishment clause requires all levels of government to maintain a “wall of separation” between government and religion. The states and the federal government were prohibited from passing laws that “aid one religion, aid all religions, or prefer one religion over another.” They could level no tax “to support any religious activities or institutions.” They could not “participate in the affairs of any religious organizations or groups.”

The court’s commitment to these principles has faded. Conservative justices believe that the government should be deemed to violate the establishment clause only if it coerces religious participation or it discriminates among religions in giving economic benefits. Two justices – Clarence Thomas and Neil Gorsuch – would go much further. They contend that Everson was wrong and that the establishment clause should not be applied to state and local governments at all.

The conservative view of the establishment clause was evident six years ago in Town of Greece v. Galloway, which found no constitutional violation when a local government had almost exclusively Christian clergy deliver invocations, which were often explicitly Christian in content, over a long period of time. A year ago, in American Legion v. American Humanist Association, the court concluded that the establishment clause was not violated by the presence of a 45-foot cross on public property at a busy intersection.

This term, in Espinoza v. Montana Department of Revenue, the court’s conservatives decided, 5-4, that “no aid to religion” provisions in state constitutions violated the federal Constitution if they led states to deny public benefits to religious institutions solely because of their religious character. Since the founding of the Constitution, the use of tax dollars to support religious institutions was considered a matter of grave concern and a potential source of great political turmoil. These concerns, in part, informed the drafting of the establishment clause. On what basis did the court conclude that state “no aid to religion” laws are unconstitutional? The answer involved a novel interpretation of the free exercise clause.

Free exercise clause

The specific issue in Espinoza was a Montana law that allowed parents sending their children to private school, whether secular or religious, to receive a $150 tax credit. The Montana Supreme Court invalidated the tax credit law as violating the “no aid” clause of the Montana state constitution.

In his opinion for the majority, Chief Justice John Roberts held that the free exercise clause did not permit the state to make the tax credit available to parents who sent their children to secular private schools but not to parents who sent their children to religious schools. Even more dramatically, it did not allow the state supreme court to resolve the matter by eliminating the tax credit program in its entirety, even though that obviously ended any discrimination between religious and secular schools.

Three years ago, in Trinity Lutheran Church v. Comer, the court held that the state of Missouri violated the free exercise clause when it gave secular private schools aid for playgrounds but denied the same assistance to religious schools. The court said it was “odious” to deny religious institutions benefits that go to secular ones, and it applied strict scrutiny to the denial – but, in a footnote, the court said the case was limited to “express discrimination based on religious identity with respect to playground resurfacing.” Now, with its holding in Espinoza, the court has made clear that, whenever the government gives benefits to secular private schools, it must provide them to religious schools unless it can be shown that doing so would violate the establishment clause. And as explained above, very little will violate the establishment clause for the conservative justices.

Prior to 2017, never in history had the court required the government to provide aid to religion. Now a majority on the court has found that the government is compelled to do so whenever it gives the assistance to secular private institutions.

In addition to using the free exercise clause as an unprecedented cudgel against state “no aid” (disestablishment) provisions, the conservatives also have deviated from long-standing precedent to use religious liberty to allow individuals to impose great harm on others. In 1990, in Employment Division v. Smith, the court held that the free exercise clause cannot be used to challenge neutral laws of general applicability, no matter how much they burden religion, unless it can be shown that the government’s action was based on animus to religion. But the current court has backed away from this approach and supports a much more robust protection of free exercise of religion.

In Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that teachers at Catholic elementary schools could not sue for employment discrimination. One teacher had tried to sue for disability discrimination after losing her job following a diagnosis of breast cancer, and the other teacher had tried to sue for age discrimination after being replaced by a younger instructor.

Previously, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the court said that there was a narrow exception that protected religions from being held liable for choices they make as to their “ministers.” Such choices traditionally were considered “exclusively ecclesiastical questions” that the government should not second-guess. But now the court has expanded the exception to all teachers, meaning that religious schools can discriminate with impunity based on race, sex, religion, sexual orientation, age and disability.

The free exercise clause is being used to undermine rights to nondiscriminatory treatment that people are entitled to in all other settings. Ironically, the same justices who stressed, in Espinoza, that religious schools should be treated the same as secular ones also said, in Our Lady of Guadalupe, that they should be treated differently with a broad exemption from anti-discrimination laws.

This term’s decision in Little Sisters of the Poor v. Pennsylvania, upholding a Trump administration rule that exempted employers from having to provide contraceptive insurance coverage if they had a religious or conscience-based objection to contraceptives, involved questions of statutory construction and administrative discretion, rather than constitutional requirements. But the outcome echoed the 2014 decision Burwell v. Hobby Lobby Stores, which allowed family-owned businesses to deny contraceptive coverage to female employees based on their owners’ religious beliefs. In both of these cases, Justice Ruth Bader Ginsburg vehemently dissented, stressing the harm to women from lack of insurance coverage for contraceptives and arguing that people should not be able to use their religious beliefs to inflict injuries on others.

Next term and the future

In Fulton v. City of Philadelphia, the court will consider whether Philadelphia violated the free exercise clause by barring a Catholic organization from participating in a fostercare placement system because the organization, in violation of the city’s general nondiscrimination policy, refused to certify same-sex couples as foster parents. One of the questions before the court is whether to “revisit” Smith. Such a revisiting would undoubtedly lead the court to allow religious organizations and persons to ignore nondiscrimination laws that are meant to protect the LGBTQ+ community, as well as to ignore federal requirements to provide full health benefits to women. This issue is even more salient in light of Bostock v. Clayton County, Georgia, which held that employment discrimination based on sexual orientation or gender identity violates Title VII – but left open the possibility that religious employers may be entitled to exemptions.

It is deeply concerning to think that the religion clauses are being interpreted to allow powerful religious groups to harm innocent third parties and to establish a privileged status within the political system, to the detriment of true religious liberty and diversity. Shortly before leaving the Supreme Court, Justice Sandra Day O’Connor lamented what she saw as an attack on the wall separating church and state, and asked, “Why would we trade a system that has served us so well for one that has served others so poorly?” Why indeed? But that is exactly what the Roberts court is doing.

Posted in Featured, Symposium on the Roberts court and the religion clauses

Recommended Citation: Howard Gillman and Erwin Chemerinsky, Symposium: The unfolding revolution in the jurisprudence of the religion clauses, SCOTUSblog (Aug. 6, 2020, 10:36 AM), https://www.scotusblog.com/2020/08/symposium-the-unfolding-revolution-in-the-jurisprudence-of-the-religion-clauses/