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.
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.”