This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.
Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation professor of law at the University of Notre Dame and is the founding director of the school’s Program on Church, State and Society. He wrote or joined amicus briefs in several of the cases described below, including most recently joining an amicus brief on behalf of the petitioners in Our Lady of Guadalupe School v. Morrissey-Berru.
Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A “hot mess” was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalia’s 1993 portrayal of the so-called “Lemon test” as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”
An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and – full disclosure – I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually “pretty, pretty good.”
Many scholars and commentators would disagree, of course. To them, these developments represent the “crumbling,” “demolition” or some other masonry-related downgrading of the “wall of separation between church and state,” or they supply evidence of a judicially ascendant “Christian nationalism” or even “theocracy.” In fact, though, the Roberts court has moved the law of religious freedom and church-state relations toward coherence and clarity, and better aligned it with American history, tradition and practice and with an appropriate understanding of judges’ capacities and the judicial role in a democracy.
A number of recent decisions, including several cases from the 2019-20 term, illustrate this movement. And one that is already scheduled for the fall and another that the justices have been asked to review provide an opportunity to continue it. But before discussing recent rulings and upcoming arguments, it is worth asking how and why things went wrong.
The Supreme Court, during its first century and a half, had almost nothing to say about the judicially enforceable content of the right to religious freedom, about the role of religious believers and arguments in politics and public life, or about the terms of permissible cooperation between “church” and “state.” Questions about these matters were, for the most part, worked out politically and practically, and in ways that (for better or worse) did not often depart from public consensus, habit and expectations. With the gradual “incorporation” of the Bill of Rights, though, and the Supreme Court’s emerging understanding of its counter-majoritarian role, this changed.
As the court took up the task of interpreting and enforcing the religion clauses, at least three things contributed, eventually, to the much-derided state of doctrinal affairs. The first was the constitutionalization — indeed, the fetishization — of a James Madison pamphlet and a phrase in one of Thomas Jefferson’s constituent-service letters. In his 1947 opinion for the court in Everson v. Board of Education, Justice Hugo Black of Alabama presented as canonical a potted and partial history of America’s religious-freedom experience in which a Virginia controversy and Jefferson’s passing reference to a “wall of separation between Church and State” — and not the broad range of views about the meaning of disestablishment — were foundational and controlling. Particularly in school-funding cases, this focus (or myopia) would cause the justices to convert the First Amendment’s no-establishment rule into a command that, somehow, governments avoid “advancing religion.”
A second misstep was the embrace of an understanding of constitutionally required “neutrality” that consisted not in even-handedness or nondiscrimination among America’s increasingly diverse array of religious traditions and communities, but instead in the absence of (something called) “religion” from (something called) the “secular” sphere. That is, “neutrality” was often said to require the forced confinement of religion to the purely private realm, preventing it from playing any role in the routines of public schools and other spaces.
Finally, there was the relatively late-emerging problem of public religious displays, symbols and expression. Although these did not, strictly speaking, impose any obligations, penalties or disadvantages, or confer any privileges, they came to be seen by the court as threatening or contributing to “political divisions along religious lines” or as “endorsing” religion and thereby telling some that they are less than full citizens or “outsiders in the political community.” At the same time, judges and justices were often unwilling to follow through to the extent of outlawing all public displays, symbols and art connected with religious holidays and themes, or undoing the national motto, or cancelling longstanding practices like legislative chaplains. The line between an unlawful endorsement and a permissible acknowledgment of religion seemed to depend on little more than the intuitions, or the aesthetic preferences, of the one drawing it.
For these and other reasons, the evocative denunciations by various justices of, say, the interior-decorating and semiotics aspects of courts’ attempts to apply the “endorsement test” and of the strange contrasts involved in school-funding cases between the religion-advancing effects of books and maps, had force. However, to make a long story short, under the Rehnquist and now the Roberts courts, things have improved.
For starters, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a unanimous 2012 opinion authored by Roberts, the court reminded us that the point of separating, or differentiating between, “church” and “state” is not to erect a cooperation-killing “wall” but instead to protect religious freedom by preventing governments from interfering in religious matters and from purporting to answer religious questions. In June, the justices re-affirmed this understanding, and the corresponding right of religious communities to select their own teachers and teachings, in Our Lady of Guadalupe School v. Morrissey-Berru.
By 2002, a gradual but unmistakable evolution in the cooperation-with-religion context culminated in the Zelman v. Simmons-Harris decision, in which the court downplayed the “Lemon test’s” quixotic aim of avoiding any “advancing” of “religion” and instead applied a more straightforward and enforceable requirement of formal neutrality. And, this past term, in Espinoza v. Montana Department of Revenue, the court ruled that not only may governments provide funding to persons who choose religious schools, hospitals and social-welfare agencies for the important public goods they provide, they may not discriminate against religion when doing so.
And another example of doctrinal clean-up came in 2019’s decision in American Legion v. American Humanist Association, in which the justices rejected an establishment clause challenge to a large and longstanding war-memorial cross on public property. Instead of hypothesizing about the messages on civic status communicated by the cross to judicially constructed “reasonable observers,” a majority of justices called for respecting, and deferring to, history and tradition when deciding whether a particular symbol amounts to an “establishment of religion.” Noncoercive and time-honored displays and practices should not be uprooted on the complaint of “offended observers” in the name of an abstract understanding of the secular.
The remaining category of American religious-liberty controversies involves exemptions for religious exercise and accommodations for religious people. The Roberts court has several times affirmed, sometimes unanimously, that religious exercise may, and should, be legislatively accommodated and may be treated as “special” by governments in keeping with the particular solicitude shown for it in the First Amendment’s text and throughout American history. The long-running dispute over the Affordable Care Act’s contraception-coverage mandate, which returned to the court last term with Little Sisters of the Poor v. Pennsylvania, provides a contested illustration of the court’s willingness to interpret legislative accommodations of religion broadly, but the controversy surrounding this particular controversy should not obscure the broad, clear consensus that reasonable accommodations of religious dissenters promote both religious freedom and civic peace.
So far, the Roberts court, with its “conservative” majority, has left in place the rule, laid down 30 years ago in Employment Division v. Smith, that, although generous accommodations of religion are permitted, exemptions from generally applicable and nondiscriminatory laws that burden some religious practices are not required by the free exercise clause. The Smith rule has come in for criticism that is every bit as harsh, and at least as widespread, as the critiques of the Lemon and endorsement tests. And the justices have agreed to hear a case this fall that offers an opportunity to reject or revise it.
Fulton v. City of Philadelphia involves the city’s decision to exclude Catholic Social Services from participating in the enterprise of foster-care placements because that agency refuses, for religious reasons, to certify same-sex couples as foster parents. Although the justices could rule for Catholic Social Services on the narrow ground that the city’s policies are not really neutral or generally applicable – an approach similar to the route chosen in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission – the question “whether Employment Division v. Smith should be revisited” is squarely presented.
The Roberts court’s interpretation and application of the religion clauses have continued an evolution that made First Amendment doctrine more coherent and also more consonant both with historical practice and the judicial role. Exactly how a “revisiting” of Smith would fit in with this evolution remains to be seen. Stay tuned.
Symposium: Religious freedom and the Roberts court’s doctrinal clean-up,
SCOTUSblog (Aug. 7, 2020, 9:57 AM),