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July 05, 2022 HUMAN RIGHTS

The Free Exercise Clause vs. the Establishment Clause: Religious Favoritism at the Supreme Court

by Bradley Girard and Gabriela Hybel

Religious liberty issues are now center stage at the U.S. Supreme Court. In just the last two months, the Court has already made dramatic changes to its First Amendment jurisprudence, and it is likely to go even further. By overturning longstanding precedent on these issues, the Court has not guaranteed religious liberty for all but, instead, religious favoritism for some. This article highlights the ideological underpinnings of those changes and gives an idea of what’s likely to come—especially how those changes will harm the most marginalized groups.

Since the founding of this country, the Religion Clauses of the First Amendment—the Establishment Clause and the Free Exercise Clause—have been rightly understood to jointly demand government neutrality to religion. The Free Exercise Clause recognizes our right to believe and practice our faith, or not, according to the dictates of conscience. And the Establishment Clause bars the government from taking sides in religious disputes or favoring or disfavoring anyone based on religion or belief (or lack thereof). The Establishment Clause thus makes the Free Exercise Clause’s promise of religious freedom real for everyone, not just an empowered few. That basic civics lesson was once widely understood, nonpartisan, and uncontroversial.

Since the founding of this country, the Religion Clauses have been rightly understood to jointly demand government neutrality to religion.

Since the founding of this country, the Religion Clauses have been rightly understood to jointly demand government neutrality to religion.


But no longer. A majority of the current Court now believes that the two clauses are inherently at odds and that long-settled anti-establishment interests—prohibition of government funding for religion, to name just one—get in the way of the free exercise of religion. And the justices have made clear that, to them, free exercise is what matters. Take Carson v. Makin, where the Court recently concluded that the Free Exercise Clause demands public funding of religious education. Carson presented a challenge to Maine’s education-funding program. Because Maine is so sparsely populated, and many students live in areas without their own public schools, the state provides vouchers for those students to get the equivalent of a public education—either at a public school somewhere else in the state or at a private school that has nonsectarian instruction. Parents challenged the programming, arguing that they have a free exercise right to use those state funds for religious education. And on June 21, the Court concluded for the first time that a state is required to allow vouchers (that is, taxpayer dollars) to be used for religious education. That’s a sharp turn from earlier cases (Zelman v. Simmons-Harris and Locke v. Davey), which held that when it came to state funds for religious schools, neutrality was key; states could include religious schools in broad voucher programs but were not required to fund religious education.

The interests in denying state funds to religious education aren’t theoretical. In Carson, for example, one of the schools at issue teaches students to reject Islam. Another requires teachers to agree that “homosexuals and other deviants” are “perverted.” Forbidding forced taxpayer subsidy of religious education is one of the very reasons that the Establishment Clause exists in the first place. But by striking down Maine’s program, the Court has required Islamic taxpayers to fund education denigrating their religion, forced LGBTQ families to pay for students to learn that LGBTQ people are perverted, and enlisted every Maine taxpayer in funding religious ministry all in support of a supposed free exercise right, unknown at the Founding, to use state funding for religious education.

But it doesn’t stop there. As Justice Sotomayor wrote in dissent, this decision “continues to dismantle the wall of separation between church and state.” Under this Court, the separation “that the Framers fought to build” has itself become a constitutional violation. A majority of the justices appear to believe that free exercise is so important that it must supersede all other rights—including equal protection, due process, and the whole panoply of constitutional and statutory protections against invidious discrimination.

It has long been settled that simply having a religious objection to a law does not constitutionally exempt someone from that law. Under Employment Division v. Smith, for example, a law is constitutional, even if it burdens some religious practice, as long as the law is neutral toward religion (meaning it applies to religious and nonreligious beliefs alike). Holding otherwise would, as Justice Antonin Scalia noted in Smith, “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Such an overreading of the free exercise right could “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

Since Smith, however, there has been a push to undermine the decision and privilege free exercise claims. Advocates of what is labeled the “most-favored nation” theory argue that heightened scrutiny is required any time a law includes any secular exemptions without comparable religious ones. Because almost every law has some exemptions and could conceivably burden some religious practice, the most-favored nation theory does exactly what Justice Scalia cautioned in Smith: it permits each person, corporation, or employer to “become a law unto himself.”

Despite the warnings, the Supreme Court seems sympathetic to the theory. In the 2020 term, all eyes were on Fulton v. City of Philadelphia, in which the Court was explicitly asked to overrule Smith. But while Fulton was pending, the Court dramatically changed free exercise law on the so-called shadow docket (meaning the case was decided without the benefit of full briefing or oral argument). In Tandon v. Newsom, the Court enjoined California from enforcing COVID-19 restrictions on private gatherings—including at-home religious gatherings—and explained that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” Never mind that the “comparable” secular activities–hardware stores and nail salons–were entirely unlike at-home gatherings. The result was nothing less than religious favoritism.

And although Fulton did not affirmatively overrule Smith, it significantly undermined Smith’s holding. In Fulton, Philadelphia refused to contract with a religious foster care agency that would not certify same-sex couples as foster care parents. The Court held that because the city’s anti-discrimination policy allowed for some nonreligious exemptions, it was not neutral toward religion. Therefore, under Smith, the city’s policy had to satisfy strict scrutiny—which the Court decided the city could not do. The Court ignored that the permissible exemptions—which had never been granted—were for the placement of children and not for the certification of parents. While the Fulton decision was celebrated for applying—rather than revisiting—Smith, it also demonstrates how religious favoritism can take hold even if Smith survives. By playing fast and loose with the definition of “comparable” treatment of religion and nonreligion, courts can invalidate almost any law.

But religious favoritism doesn’t even end there. The Court has decided that religion is enough to opt out of certain civil rights laws entirely. Take, for example, the Court’s decisions in Hosanna-Tabor v. EEOC (2012) and Our Lady of Guadalupe v. Morrissey-Berru (2020), which applied the ministerial exception. Under that doctrine, religious organizations are not held liable for certain types of discrimination against their ministers. When the exception applies—that is, when someone is found to be a minister—employers need not show that religious beliefs had anything to do with their discriminatory acts toward an employee. The victim of the discrimination simply loses the protection of core civil rights laws like Title VII and the Americans with Disabilities Act, among others. And despite what the name suggests, the ministerial exception applies broadly so long as the employee plays an important role in carrying out the employer’s religious mission. Courts have applied it to elementary school teachers, an ESL professor, and others, including even an organist. And just this term, four justices indicated that they would go further, allowing statements in contracts and employee handbooks to determine whether an employee is a minister, even if those statements don’t reflect what the employee actually did.

Even in Bostock v. Clayton County (2020)—a milestone civil rights victory that held that Title VII protects against employment discrimination based on sexual orientation or gender identity—the Court laid the groundwork for religious exemptions to skirt the ruling. Not only might some employers avail themselves of the ministerial exception or certain Title VII exceptions for religious organizations, but the Court implied that any employer might avoid Title VII’s requirements by relying on the Religious Freedom Restoration Act—RFRA—which Justice Neil Gorsuch called a “superstatute.” Under RFRA, the government must satisfy strict scrutiny when its actions “substantially burden” someone’s religious exercise. The Court’s approving reference to RFRA validated the idea that an individual’s personal religious beliefs might outweigh the government’s interest in stopping discrimination.

The Constitution was once widely understood to guarantee religious freedom and equal protection for everyone. In the 1968 case Newman v. Piggie Park Enterprises, for instance, the Court described as “patently frivolous” Piggie Park’s argument that, because a restaurant owner’s religious beliefs “compel[led] him to oppose any integration of the races,” he was exempt from Title II of the Civil Rights Act and should be permitted to refuse service to Black customers. The Court’s current turn toward religious exceptionalism suggests, remarkably, that Piggie Park’s retrograde requests failed only because they came 50 years too early. We hope this trend of religious favoritism is only a short detour and that we return to our constitutional underpinnings.

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Bradley Girard

Litigation Counsel, Americans United for Separation of Church and State

Bradley Girard is litigation counsel at Americans United for Separation of Church and State, where he litigates principally in the federal courts of appeals and the U.S. Supreme Court. His practice includes issues of employment discrimination, LGBTQ rights, criminal justice, and racial justice, among others.

Gabriela Hybel

Madison Legal Fellow, Americans United for Separation of Church and State

Gabriela Hybel is a Madison Legal Fellow at Americans United for Separation of Church and State. Previously, she completed a fellowship with Farmworker Justice and a clerkship with the Honorable Neal E. Kravitz on the D.C. Superior Court.