Tag: First Amendment

Flast v. Cohen (1968)

~ Blue Cereal

NOTE: This is an excerpt from “Have To” History: A Wall of Education.

Three Big Things:

1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.

2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.

3. According to Flast v. Cohen, when it comes to violations of the Establishment Clause, however, unwanted exposure to the offense can be sufficient to show standing in the eyes of the law… because establishment isn’t like anything else.

Standing Before the Court

During the same session which determined in Board of Education v. Allen that states could provide textbooks to public and private schools alike without violating the Establishment Clause, even if many of those private school students were attending religious institutions, the Court announced in Flast v. Cohen that taxpayers had the right to oppose their tax dollars being used to do just that.  

This was new. Sort of. But maybe not. It was also sort of confusing.

The case began when Florence Flast and other New York taxpayers objected to federal legislation which provided funds for the purchase of secular textbooks for use in religious private schools. They argued that using their tax dollars in this way violated the Establishment Clause. The government responded with a derisive chuckle and a gaze full of pity for these poor fools who clearly didn’t understand how these things worked.

See, way back in Commonwealth of Massachusetts v. Mellon (1923), the Court had specifically addressed the question of whether or not taxpayers had standing to sue based on being taxpayers. “No,” they said. “Absolutely not. Don’t be stupid.” If the government takes your money against your will and then uses it for something you don’t like – especially something you’re pretty sure they’re not supposed to be doing anyway – take it up with your elected representatives. That’s totally not the job of the judicial branch – “separation of powers” and all that.  

Besides, both the gathering of taxes and the distribution of state funds were simply too general and, you know… big. It was impossible to connect specific state expenses to individual taxpayer contributions in more than a theoretical way – like identifying which raindrops were responsible for a flood downriver weeks later. Besides, every act of legislation, particularly when it involves spending, potentially impacts the economy. Maybe the very act you’re opposing is actually lowering your taxes somehow – did you think of that, Little Miss Lawsuit-Pants?

Honey, Have You Seen My Precedent?

This reasoning remained largely unchallenged for several decades, at least directly. In a few cases involving church-state issues in relation to public education, however, it’s more like it was pragmatically ignored.

Everson v. Board (1947) was initiated by a taxpayer who didn’t like state funds being used to pay bus fare to religious schools. The Court ruled against him, but not for lack of standing. Neither the majority opinion nor Justice Robert Jackson’s dissent questioned the plaintiff’s right to bring the complaint; the case was determined entirely on grander constitutional grounds.

The plaintiffs in McCollum v. Board (1948) were parents of children in the district, but also filed as taxpayers who didn’t want their money used to support “released time” programs for religious instruction during the school day. Justice Robert Jackson’s concurrence addressed the issue of taxpayer concerns, finding that the cost of the program was negligible (unlike the bus fare issue in Everson). What he did not suggest was that taxpayer status itself was insufficient to bring the suit to begin with. The majority opinion itself focused on compulsory education laws and the role of parents as advocates for their children. Taxpayer status was simply not a factor.    

A few years later in Zorach v. Clauson (1952), parents who opposed “released time” programs during the school day (but not actually on school grounds) claimed standing both as parents and taxpayers. Nothing in the record indicates anyone challenged this, and no one even mentioned Mellon.

Just to keep everyone on their toes, however, that same year, in Doremus v. Board of Education (1952), the Court shot down plaintiffs opposed to a New Jersey law mandating that Bible verses from the Old Testament be read to students at the beginning of each school day. One had filed suit as a parent, but the child in question didn’t seem sufficiently traumatized to establish “injury,” and by the time the case reached the Supreme Court, they’d graduated anyway – rendering that parent’s complaint moot in the eyes of the Court. The other had filed as a taxpayer, which the Court declared insufficient to establish standing.

Unlike in Everson, there was no specific legislative outlay of funds in Doremus for a taxpayer to challenge. Daily Bible-reading didn’t actually cost anything extra; school budgets stayed pretty much the same whether they pushed Old Testament theology on students or not. With no qualified plaintiff, the Court saw no need to rule on grander constitutional questions. (Dissenters argued that schools using their limited time and resources to promote faith instead of, say… math or reading was in fact of interest to taxpayers, but the majority was not convinced. The Supremes have rarely proven sympathetic towards Rune Goldberg arguments – it looks for immediate cause and effect whenever possible, and “coulda been studying the demise of the Whigs instead” simply wasn’t compelling.)

It Followed Her To School One Day (Which Was Against The Rules)

In the early 1960s, the Court struck down several varieties of state-sponsored prayer and Bible-reading in public schools. In Engel v. Vitale (1962), Abington v. Schempp (1963), and Chamberlin v. Dade County Board of Public Instruction (1964), the plaintiffs were each time parents of school-aged children who objected to this particular mixture of church and state. Their status as taxpayers was periodically referenced in records, but never as the crux of their standing before the courts.

What did emerge, however, in the Supreme Court’s Engel decision (and quoted in Abington the following year) was a critical distinction in how the twin religion clauses of the First Amendment should be approached:

Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not…

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion…

The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.

The twin religion clauses are often portrayed as pulling against one another, but Justice Black insisted, rather, that they in fact operate on two entirely different levels. “Free Exercise” constrains what the government can do that might interfere with sincerely held beliefs. It’s intended to allow personal pursuit of the divine as long as the general good is not overly compromised. It’s pragmatic and statutory. “Establishment,” on the other hand, is grander and more idealistic. It proclaims a principled division between the secular and the divine – between man’s laws and the whispers of the spirit. In so doing, it protects both.

Government sacrifices credibility the moment it dabbles in religious messaging, thus elevating some of its citizens over others and eroding the social contract. And while religion can benefit immensely from government sponsorship, true faith rarely survives it.

Or so the Court has repeatedly suggested, at least until recently.

What does this have to do with taxpayer standing in the courts? Everything. Establishment is the very first protection of the entire Bill of Rights, as well it should be. At the same time, it’s not quite like the other protections. More than free speech, a free press, freedom of assembly, or the right to petition for a new dress – more, even, than the free exercise of religion, the Establishment Clause seeks a grander right than those guaranteed to one citizen at a time. It claims for American citizens the right to render unto Caesar only the things that are Caesar’s and render unto God the things that are truly God’s – whatever those might be – without input or influence from secular authority.

Governmental violations of such a thing, then, don’t always work the same as other forms of state intrusion or overreach. They may even arrive as angels of light – generalized benefits disproportionately assisting religious institutions, rituals meant to acknowledge the dominance of some faiths over others, or public displays reinforcing the majority culture at the expense of those on the outside looking in. What makes Flast such an odd little outlier of a case is the Court’s stretch to recognize and accommodate this difference in objective, legal terms.

Flast v. Cohen (1968)

In Flast, a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. The government argued that based on established precedent, they had no right to sue. The case, then, became about standing rather than the merits of their complaint. If they weren’t qualified to bring the suit to begin with, it didn’t really matter how right or wrong they were on substance.

The Supreme Court determined that there was nothing in the Constitution barring federal taxpayers from challenging taxing and spending they believed to be unconstitutional, so long as they could persuasively demonstrate a “necessary stake” in the results. Plaintiffs had to demonstrate that a legislature had exceeded its constitutional authority for taxing and spending AND identify a specific constitutional right being violated in order to show actual “harm” being done to them in some way.

Here’s how Chief Justice Earl Warren put it in the Court’s majority opinion (internal quotes and citations have been omitted for clarity):

The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court, and not on the issues he wishes to have adjudicated. The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy…

{W}e find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs…

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article. I, Section 8, of the Constitution… Secondly, the taxpayer must… show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress…

While we express no view at all on the merits of appellants’ claims in this case, their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court’s jurisdiction for an adjudication on the merits.

In practice, this turned out to mean that only when the Establishment Clause was involved would being a taxpayer secure standing in the eyes of the law. The decision in Flast wasn’t quite that specific, but in the half-century since, that’s how it’s worked out.

The Lemon Aid

A few short years later, in Lemon v. Kurtzman (1971), the Court ruled against state support of religious education via materials and – in some cases – salary support, declaring it a constitutional no-no. The plaintiffs were taxpayers in the relevant districts and several also had children in the local schools, so standing wasn’t an issue. The aid was a bit more involved, making it different from mere “textbooks” in the eyes of the Court. From Lemon emerged the “Lemon Test,” an informal tool often utilized by the Court to weigh the church-state constitutionality of government actions. The Lemon Test has three parts:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion” …

Those first two would come up more often than the third, and later evolve into what’s commonly referred to as the “endorsement test.” While not official (and recently all but officially overturned), the Lemon Test acknowledges the importance of how government actions are perceived as well as their intent. In other words, establishment is not just about the letter of a law – it’s about motivations and practical results as well.

“Unwanted Exposure”

Sometimes, of course, Establishment Clause violations come without obvious taxing and spending involved, meaning they don’t trigger the standing requirements outlined in Flast. In these cases, the Court will often allow plaintiff standing based on what Professor Carl H. Esbeck of the University of Missouri School of Law calls “unwanted exposure.” In practice, this means that even if someone’s tax dollars aren’t directly paying for something, that doesn’t mean it’s OK for the government to push a message approving some faiths over others, or faith in general over no faith at all. Violations of the Establishment Clause don’t have to be expensive to be violations.

In Stone v. Graham (1980), the Court invalidated a Kentucky state law which required public schools to post the Ten Commandments in classrooms. The actual copies of the Decalogue were donated by outside organizations, so there was no legislative spending involved. As with the mandatory prayer or Bible-reading in Engel or Abington, however, students were still exposed to a daily religious message brought to them on behalf of their government and with subtle but unpleasant consequences for those who chose not to play along. The plaintiffs in Stone, several parents and one teacher, had standing based on this “unwanted exposure” not covered in Flast.

In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982), the Court refused standing to taxpayers who complained about the transfer of government property to a Christian college. The decision had been made by the Executive Branch; there was no legislation instituting new taxes or creating new spending involved. The Court based its reasoning on the two-part test established in Flast.

Marsh v. Chambers (1983) originated with a Nebraska state legislator who didn’t like paying local clergy to offer a prayer at the beginning of each day. The government didn’t make standing a major issue, but the Supreme Court’s majority opinion acknowledged in a footnote that “we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” In short, he had standing based on both taxpayer status and “unwanted exposure.” (Chambers lost his case on its merits, however, based largely on the idea that adults aren’t children forced to do what others tell them to all day. “Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect.”)

Lynch v. Donnelly (1984) – The Message Conveyed

Lynch v. Donnelly challenged the constitutionality of a Christmas display put up by the city of Pawtucket, Rhode Island, each year which prominently featured a full Nativity Scene (Mary, Joseph, a glowing Baby Jesus, etc.) The Court did not address standing as such, but the plaintiffs were local residents who would have easily qualified under the “unwanted exposure” principle inherent in the Court’s previous decisions. In terms of its impact on cases related to education, the real significance of Lynch was captured in the concurring opinion of Justice Sandra Day O’Connor:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by non-adherents of the religion, and foster the creation of political constituencies defined along religious lines…

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message…

The meaning of a statement to its audience depends both on the intention of the speaker and on the “objective” meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker’s intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government “speaks” by word or deed, some portion of the audience will inevitably receive a message determined by the “objective” content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning.

Although Justice O’Connor doesn’t explicitly connect the two, this is why “unwanted exposure” was (and is) a valid foundation for standing. It doesn’t mean the individual will win every time they complain (the Court said Pawtucket could keep its Nativity Scene, for example), but it does recognize that violations of the Establishment Clause aren’t always full of obvious arm-twisting or overt threats to “non-adherents.” There’s more to many government messages than the literal, face-value words or actions. Just like your kids, teachers, co-workers, boss, or spouse, sometimes you know quite well what’s being communicated even if the other person doesn’t come right out and say it.

Also coming before the Court in 1984 was the case of Allen v. Wright, in which some very messy issues regarding racial segregation and the ugly history of private schooling across the south. In Allen, a conglomeration of Black parents argued that tax-exempt status for segregated private schools and tax deductions for those who supported them were unconstitutional based on the Court’s ruling in Brown v. Board of Education (1954) a generation before and numerous acts of the federal government since. They were rejected for lack of standing.

Turns out the issue still wasn’t as clear cut as Flast or subsequent decisions had presumably tried to make it.

 

Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

~ Blue Cereal ~ 2 Comments

Three Big Things

1. The Santeria religion includes animal sacrifices as part of many rituals. These sacrifices are essential to both believers and their deities.

2. When the Church of the Lukumi Babalu Aye announced its plans to build facilities in the city of Hialeah, Florida, city officials quickly moved to outlaw animal sacrifice for any reason – except for just about every other reason one might kill an animal, in which case it was still OK. Just not for the Santeria.

3. The Supreme Court found this violated the Free Exercise Clause by targeting specific religious behaviors without adequate justification, neutral application, or reasonable effort to accommodate the beliefs of the Santeria.

Background

Santeria is one of those religions that the folks most likely to demand more “freedom of religion” in the United States don’t actually mean to include.

Its roots are African, mixed with elements of Catholicism and perhaps a few other things as well. It is thus a prime example of “syncretism” (cultural mixing) – one of those fancy terms you no doubt recall from your world history class in high school. Thanks to the all-expense paid vacations offered to African natives by European powers prior to the mid-nineteenth century, it spread quickly to the Caribbean region and parts of the United States. It’s impossible to gauge actual numbers, of course – there were no official surveys regarding the preferred belief systems of slaves or anything.  

For many years, Santeria remained largely “underground” in the U.S. Most adherents were people of color, many descended from former slaves or recent immigrants, and they no doubt had a pretty good idea how society would respond to such an “African”-flavored faith. Like many other elements of Black culture historically, many found it best to remain under white radar whenever possible.

Santeria remained particularly strong in Cuba, however, meaning it eventually carved out a presence in Florida as well, along with other scattered enclaves across the country. Membership has become slightly more diverse, with a noticeable minority of white folks and an Asian American or two. It’s not exactly “mainstream,” but neither is it totally obscure – at least from a statistical perspective.

Santeria is a very hands-on, get involved religion – far closer to Latin-flavored Catholicism than upper crust Protestantism. Its adherents (and no, they’re not called “Santerians”) often have alters in their homes on which they place flowers, cake, rum, or cigars to keep the gods happy. The “gods” in this case are the Orishas – powerful, but not omnipotent beings. Orishas are often conflated with or represented by various Catholic saints, each of whom has a “specialty” of sorts when it comes to divine intervention. Somewhat like the Hindu pantheon, Orishas are both distinct entities and manifestations or reflections of the same higher (or highest) power.

Spiritual truths don’t always follow worldly logic, after all.

What sets Santeria apart – at least in modern times – is the role of animal sacrifice. Historically, the ritual slaughter of various critters as offerings to the gods is pretty standard stuff. The Jews of the Old Testament are the most familiar example, but it was also common among the Greeks, Romans, Celts, Norse, Egyptians, and numerous other cultures. Christians echo the tradition by symbolically drinking of the blood and eating the flesh of the Son of God, thus maintaining the ritual with less clean-up afterwards. Islam rejects the “blood for favors or forgiveness” element and retains a single annual sacrifice of thankfulness each year during Eid al-Adha.

But in Santeria, sacrifices are far more old school. The relationships of believers and Orishas is symbiotic. Worshippers ask for assistance in fulfilling their divinely-approved destinies, and in exchange they perform the appropriate rituals. Acceptable sacrifices include various foods, drinks, and pretty things, but for big stuff – births, marriages, funerals, curing illness, confirming new members, etc. – animal slaughter is essential. Typical critters include chickens, doves, ducks, guinea pigs, goats, sheep, and turtles. For many (but not all) rituals, the animals are cooked and eaten by the community afterwards – a kind of “dining with the gods” thing. It’s not all just about animal sacrifices, of course. Drumming, dancing, speaking to the spirits, and the like, are usually in the mix as well. It’s interactive, both in terms of believer-to-believer and mortals-to-gods. The Orishas take care of the faithful, and in turn, they subsist on the rituals and sacrifices offered by faithful mortals. Without them, the Orishas would perish.

The Conflict

In 1987, the Church of the Lukumi Babalu Aye, led by Italero (“Priest”) Ernesto Pichardo, leased some land in Hialeah, Florida, and began securing the appropriate permits to establish a house of worship there. Santeria doesn’t generally have its own buildings, but this particular assembly hoped to start their own school, a cultural center, and a museum on site as well. Their stated goal was to bring Santeria out of the shadows and into the open, welcoming the community to learn more about them while providing their “congregation” with the same sort of facilities as any other mainstream religion.

Unfortunately, not all members of the surrounding community embraced this wonderful expansion of multiculturalism. Many, in fact, lost their proverbial minds. The Hialeah City Council began holding emergency meetings in which it was resolved that they’d find some way to shut this nonsense down. As community members lined up to voice their disapproval, many city officials simply couldn’t contain themselves and proclaimed that good Christian communities wouldn’t stand for this outrageous pagan stuff because America and democracy and gross-they-kill-chickens! One city councilman insisted with absolutely zero sense of irony that allowing Santeria to be practiced in their city was “in violation of everything this country stands for.” Another supported banning Santeria because he was certain the Bible didn’t approve of animal sacrifice.

I’ll give you a moment to process that one.

In short, the city was certain that Jesus would certainly never tolerate anyone who broke with the dominant religious beliefs of his day – and neither should Florida.   

When it came time to actually commit words to paper, some effort was made to keep official rhetoric confined to the plausibly constitutional, framing the city’s objections as part of a larger, perfectly sensible policy against “certain religions” which might choose “to engage in practices which are inconsistent with public morals, peace, or safety.” As a body, the council declared that the “City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace, or safety.”

Put that way, it almost sounded reasonable.

Without mentioning Santeria or the Church of Lukumi Babalu Aye by name, the city council passed an emergency ordinance which repeated the state of Florida’s existing animal cruelty laws and clarified that these very much applied in Hialeah – as if perhaps not everyone was aware of how “state laws” worked. Finding this insufficient, but realizing there were limits as to how far the city could go in creating its own new criminal statues, they asked the state’s attorney general to get involved. He replied that existing Florida law prohibited the “unnecessary” killing of animals, which he defined as “done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal.” This included “ritual sacrifice of animals for purposes other than food consumption.”

In other words, according to Florida’s Attorney General, Hialeah could pass all the laws it liked to support the prohibition. Before the year was out, the city council passed several new ordinances prohibiting animal sacrifice within city limits, whether the flesh was eaten afterwards or not.

It’s worth noting the implicit assumption that religious rituals are by default lacking in “useful motive” and are not “in any sense beneficial or useful.” State and local lawmakers were careful to exempt all sorts of other reasons one might kill an animal – slaughterhouses and butchers were exempt, as were those hunting or fishing for sport or who raised a few small animals for food. It was OK to kill household pests or put down strays at the local veterinary clinic or kill an animal in self-defense. In fact, the law allowed almost anyone to kill any animals for any reason except for the Santeria and their whole “animal sacrifice” thing – all without actually admitting on paper that’s what it was designed to do.

The Santeria objected, and eventually the case worked its way up to the Supreme Court.

Evolving Precedents

Way back in Reynolds v. United States (1879), the Court had ruled that it was acceptable for government to ban polygamy despite the impact this had on the practices of the Church of Jesus Christ of Latter-Day Saints (aka, “Mormons”). The Court acknowledged that marriage had a “sacred” element but noted that it was nevertheless typically regulated by secular laws in most civilized societies. You may believe whatever you like in a free country, the majority explained, but that doesn’t mean you can circumvent reasonable secular regulations based on those beliefs.

A few years later, in Davis v. Beason (1890), the Court validated state laws which prevented citizens from voting unless they were willing to swear they neither supported nor participated in polygamy. The majority opinion by Justice Stephen Field referred to polygamy as a violation of “the laws of all civilized and Christian countries” and said it tended to “destroy the purity of the marriage relation” as well as “degrade woman and… debase man.” Polygamy was gross and wrong and they should (literally) lock you up for even talking about it.

Once Justice Field had gotten some of the outrage out of his system, he was able to dial back his rhetoric enough to summarize the Court’s central point:

It was never intended or supposed that the {First} amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society… However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.

In other words, just as in Reynolds a decade before, the Court drew a line between what individuals were allowed to believe and what they were allowed to do. (The fact that the laws in question in Davis required citizens to deny specific beliefs in order to vote was thus both validated and ignored at the same time.)

Fast-forward to the early 1960s, right around the same time the Supreme Court was bullying God out of schools, allowing people to marry outside their race, and generally destroying the morality of an otherwise holy and prosperous people. Once again, some wacky fringe religion was making things difficult for real Americans.

Adele Sherbert was a Seventh-Day Adventist. The Adventists believe that God commanded man to rest on the Sabbath, which a glance at any wall calendar or daily pill dispenser will confirm is Saturday. She was fired and then denied unemployment for refusing to work on Saturdays. This rule did not apply to those unwilling to work on Sundays however – because church and stuff.

In Sherbert v. Verner (1963), the Court ruled that the government can only restrict free exercise if the rules and procedures involved have been narrowly tailored to fulfill an essential state interest and with the minimum possible disruption to religious beliefs or rituals. Offering unemployment benefits to Sherbert wouldn’t be favoring her religion over others; it would merely be treating it the same as others with minor adjustments in the details. That’s the goal of the Free Exercise Clause, explained the Court.

Sherbert was a substantial shift in how the Court balanced secular law and religious freedom. Government at all levels was now expected to make every effort to accommodate religious beliefs or to restrict them as minimally as possible when applying neutral and essential rules and procedures. The state must have a “compelling interest” in play to justify violating free exercise.

A generation later, in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court again shifted its perspective on free exercise. In this case, Alfred Smith was fired from his job as a drug rehabilitation counselor because his employer discovered he used peyote (a hallucinogenic) as part of his Native American religious rituals. The state denied him unemployment benefits because he’d been dismissed for “work-related misconduct.” Smith’s attorneys argued that based on the standard established in Sherbert, his use of peyote for religious purposes should be exempt from otherwise general rules prohibiting drug use.

The Court decided to cut loose the “compelling interest” test of Sherbert and determined instead that generally applicable laws which only incidentally impact religious behavior (i.e., they’re clearly not designed to target it) do not violate the Free Exercise Clause of the First Amendment. The majority also drew a critical distinction between the two situations. Sherbert had been denied unemployment because the state refused to make minor policy adjustments to accommodate her religious beliefs. Smith was fired and denied unemployment for committing a felony for which he hoped to secure a religious exemption.

The Court also added another odd little wrinkle to the mix to be considered moving forward. Many free exercise cases involved related rights as well – freedom of speech and the press, parental rights over their children, etc. Smith’s case did not. In “hybrid” cases, the Court would generally use the same “strict scrutiny” standard requiring government to show a “compelling interest” in infringing on individual beliefs. In a “pure” case, however, the government need only show that the laws or policies in question are legitimate roles of government and have been applied neutrally. In the case of Smith’s peyote use, this was clearly the case.

Smith specifically rejected the premise that government was required to show a “compelling interest” whenever general laws substantially interfered with religious practices.

The Decision

Justice Anthony Kennedy wrote for a unanimous Court in favor of the Church of the Lukumi Babalu Aye. Or, rather, the justices unanimously found in favor of the church – although few of them agreed entirely as to why. (Apparently, religious freedom in the face of government regulation can be a sticky subject.) The Court was unified enough, however, to establish several clear takeaways from the case.

The Court acknowledged that the government may sometimes put burdens on religious practices with legislation that doesn’t target those practices but nevertheless impacts them. (A church who promoted human sacrifice or driving as fast as possible wouldn’t get exemptions from general laws prohibiting such things.)

The problem was that the city’s ordinances weren’t neutral. They didn’t even do a very good job of pretending they were. While state law already prohibited some animal slaughter, Hialeah officials clearly sought to prohibit this specific religious practice – they responded to community concerns that way, debated legislation that way, and crafted the specific language of local statutes that way. They’d essentially “gerrymandered” the rules to target the practices and beliefs of one specific religious organization. That’s a big constitutional no-no.

(It’s worth noting that both Justice Scalia and Chief Justice Rehnquist dissented from this part – they objected to the use of legislative motivation as a factor in determining the constitutionality of specific acts of legislation. As the Court has become more conservative in recent years, it’s become increasingly comfortable setting aside obvious context and loudly proclaimed intent in order to justify some rather counterintuitive outcomes based on technicalities or the “letter of the laws” in question.)

When laws aren’t clearly neutral, or are not applied in a neutral way, the government body making and enforcing those rules needs to be able to demonstrate a “compelling interest” which justifies the necessity of such rules and must show that it’s “narrowly tailored” its actions to interfere with religious as little as possible while still accomplishing its goals. In the case of Hialeah and the state of Florida, the laws in question didn’t consistently prioritize public health and safety (the supposed reason for passing them in the first place), and when they did address public health and safety, they were often unnecessarily broad. In other words, they were both too general and too limited all at the same time.

That happens when you’re trying to fight the even ooga-booga men and their devil faith but you have to distort and twist everything to get there… so the “truth” can win.   

In short, the efforts of the city of Hialeah to ban Santeria violated the Free Exercise Clause of the First Amendment. Whenever general laws end up infringing on religious beliefs or practices, they are subject to what the Court calls “close scrutiny” to determine whether or not such laws are both neutral (applying equally to everyone regardless of religious factors) and necessary (serving a legitimate government goal with as little interference as possible in religious matters). These laws were neither.

There Ought To Be A Law

While the Lukumi Babalu case was working its way through the system, Congress was up in arms about the Court’s decision in Employment Division v. Smith and passed the Religious Freedom Restoration Act (RFRA) of 1993. Setting aside the unnecessarily dramatic title, this legislation required courts to use “strict scrutiny” in all free exercise cases and mandated the revival of the “compelling interest” standard from Sherbert. The goal was to make it more difficult in general for government at any level to enforce general rules and regulations against religious groups or individuals – to essentially grant religious behavior a partial exemption from the laws governing everything and everyone else.

The Court invalidated most of the RFRA in City of Boerne v. Flores (1997) based on shut-up-don’t-tell-us-how-to-do-our-job. Congress tried again with the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, and this time most of what they wanted seemed to stick. In matters related to prisoners’ religious rights or religious institutions wanting to ignore zoning regulations, historical preservation statutes, parking requirements, etc., government has to meet a much higher standard before being allowed to infringe on free exercise by treating people or institutions of faith like everyone else.

It’s quite doubtful Congress had Santeria in mind while crafting RFRA or its sequel, but their respective impacts certainly complement one another. RLUIPA is still in effect, and Lukumi Babalu is still cited regularly in cases involving general laws or practices which in some way interfere with sincere religious choices. (It was referenced in both 2022 cases involving religion in schools – Carson v. Makin and Kennedy v. Bremerton – although not as the primary foundation for either decision.)

Generally speaking, any governmental action which infringes on religious behaviors or beliefs must be “narrowly tailored” to accomplish legitimate government goals and applied neutrally. In recent years, the Court has come to conflate this with a constitutional requirement that government overtly support religion in certain instances – that anything short of that is, in fact, infringes on free exercise. Just how far this stretches and in what specific situations it does or doesn’t apply is still being… sorted out.

We’ll see how it goes.  

Excerpts from Church of the Lukumi Babalu Aye v. City of Hialeah (1993), Majority Opinion by Justice Anthony Kennedy
{Edited for Readability}

The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment (see Cantwell v. Connecticut, 1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” … Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection” (Thomas v. Review Board of Indiana Employment Security Division, 1981). Given the historical association between animal sacrifice and religious worship, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible” (Frazee v. Illinois Dept. of Employment Security, 1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons…

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice (Employment Division, Dept. of Human Resources of Oregon v. Smith, 1990). Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied… These ordinances fail to satisfy {either}…

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons…  

There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face…

We reject the contention advanced by the city that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality” (Gillette v. United States, 1971) and “covert suppression of particular religious beliefs” (Bowen v. Roy, 1986). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders” (Walz v. Tax Commission of New York City, 1970).

The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances…

Resolution 87-66, adopted June 9, 1987, recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterated” the city’s commitment to prohibit “any and all such acts of any and all religious groups.” No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object… The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a “religious gerrymander” (Walz), an impermissible attempt to target petitioners and their religious practices…

We begin with Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as “to unnecessarily kill… an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter… The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice…

Operating in similar fashion is Ordinance 87-52, which prohibits the “possession, sacrifice, or slaughter” of an animal with the “intent to use such animal for food purposes.” … The ordinance exempts, however, “any licensed food establishment” with regard to “any animals which are specifically raised for food purposes” … Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others… A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.

Ordinance 87-40 incorporates the Florida animal cruelty statute… The city claims that this ordinance is the epitome of a neutral prohibition. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary… Indeed, one of the few reported Florida cases decided under {this same state law} concludes that the use of live rabbits to train greyhounds is not unnecessary… Respondent’s application of the ordinance’s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment.

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends…

The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health…

With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing… If the city has a real concern…, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it…

In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases… Here, as in equal protection cases, we may determine the city council’s object from both direct and circumstantial evidence (Arlington Heights v. Metropolitan Housing Development Corp., 1977). Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body…

That the ordinances were enacted “because of,” not merely “in spite of,” their suppression of Santeria religious practice is revealed by the events preceding their enactment… The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice. The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo {the church’s primary religious leader} with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba “people were put in jail for practicing this religion,” the audience applauded.

Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned: “If we could not practice this religion in our homeland, why bring it to this country?” Councilman Cardoso said that Santeria devotees at the Church “are in violation of everything this country stands for.” Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished kosher slaughter because it had a “real purpose.” The “Bible says we are allowed to sacrifice an animal for consumption,” he continued, “but for any other purposes, I don’t believe that the Bible allows that.” …

Various Hialeah city officials made comparable comments…

In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion…

The principle that government, {even} in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause… In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.

 

Lemon v. Kurtzman (1971) – from “Have To” History

~ Blue Cereal

NOTE: This is an excerpt from “Have To” History: A Wall of Education. In the 50+ years since this decision was issued, the “Lemon Test” has been clarified, narrowed, reinforced, and finally all but discarded by an evolving Supreme Court. (The recent decision in Kennedy v. Bremerton references it several dozen times – mostly negatively.)

That’s unfortunate, in my opinion, because it was for several decades one of the most straightforward and balanced approaches to avoiding “establishment” problems without overly hindering “free exercise.” The case is still important, however – not only because of the issues involved and the “test” which resulted, but for the erudite arguments and genuine efforts to remain pragmatic without sacrificing fundamental liberties on either side. The majority opinion by Chief Justice Warren Burger is one of the best on this topic in the entire history of the Court. 

Lemon v. Kurtzman (1971): Because Nuns Are Gonna Be Nuns

Three Big Things:

1. Lemon v. Kurtzman addressed the question of whether state financial support for the teaching of secular subjects within religious schools violated the Establishment Clause of the First Amendment. (It did.)

2. Direct State support of religious schools was determined to be unconstitutional because faculty, unlike textbooks or equipment, cannot be reasonably expected to turn their faith “on” or “off” based on the subject they’re assigned that period. Religious schools are by their nature religious, even when teaching non-religious subjects.

3. This case is best known for establishing the “Lemon Test,” a three-part checklist often used to determine whether or not a given government action violates church-state separation.

Background: A Wall of Separation

In Everson v. Board of Education (1947), the Court decided it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

A decade and a half later, in Engel v. Vitale (1962), the Court made clear that the state could not require – or even promote – prayer in public schools as part of the school day, no matter how generic the prayer. This was followed closely by Abington v. Schempp (1963) in which the same was applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In Board of Education v. Allen (1968), the court determined it was perfectly acceptable for New York to provide textbooks free of charge to all secondary students (grades 7–12), including those in private schools. Much like the busses in Everson, textbooks were considered of general benefit to all students. For the government to make it more difficult for students in religious schools to learn Algebra or Science would, in fact, violate the “free exercise” clause.

In none of these cases was the goal to drive faith out of public education. The Court’s concern, rather, was to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. Or, at least, that was how it interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth – a judicial philosophy known as “incorporation.”

The Abington decision included a little checklist by which interested parties could determine whether or not something violated the “wall of separation” established by the First Amendment. That checklist was refined less than a decade later when the Court heard Lemon v. Kurtzman (1971).

Give Me That Part-Time Religion

As of 1969, both Pennsylvania and Rhode Island had plethoras of private schools, the vast majority of which were Roman Catholic. Then, as now, most private schools operated on tight budgets. The average per-pupil expenditure was lower than public schools in the same area – even when numbers were adjusted to reflect only “secular education.” In other words, students in many private Catholic schools weren’t benefitting from the same resources as kids in public schools, even when learning science, math, or other non-religious subjects.

Both states passed legislation to provide supplemental support for these private schools, as long as the extra funds were used only for the teaching of secular subjects and buying non-religious materials. In some cases, this included help with teacher salaries. There were parents in both states, however, who complained that this diverted resources from public schools to support sectarian institutions, thus violating the First Amendment.

It presented an interesting dilemma: Was modest financial assistance for a sectarian school more like including a little prayer and some Bible verses in Engel or Abington, or supplying bus fare and textbooks in Everson or Allen? Does state assistance constitute “establishment,” or would eliminating that assistance violate “free exercise”?

Walz v. Tax Commission of the City of New York (1970)

Only a year before, the Court had addressed a similar dilemma in Walz v. Tax Commission of the City of New York. It wasn’t a public school case, but many of the issues were comparable.

The city of New York had granted property tax exemptions to religious organizations when the property in question was used exclusively for religious worship – putting them in the same general category as schools or charities, who claimed similar tax exemptions on their properties. Some property owners who did pay taxes argued this violated the Establishment Clause.

The Court determined that while government certainly had no business promoting religion, these tax exemptions didn’t actually do that – not quite. They merely allowed the “free exercise” of groups serving the public good by allowing the same tax benefits as any non-religious non-profit serving a similar function. They weren’t “establishing,” the Court said – they were stepping back and letting faithy people do faithy stuff.

The majority opinion in Walz, written by Chief Justice Warren Burger, cited a number of prior cases by way of illumination – many of them involving public schools. In turn, Walz would be cited in subsequent school-related church-state cases. Several of his more salient points, in fact, could have just as easily been prompted by Engel, Allen or Lemon:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute…

In other words, that Separation of Church and State thing is an ideal, a goal – not a clear set of rules for every situation.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other…

The Court thus recognized that the best application of First Amendment values wasn’t necessarily obvious in each and every case. Sometimes, protecting the rights of everyone concerned is an imperfect balancing act.

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. We sponsor an attitude on the part of government that shows no partiality to any one group, and that lets each flourish according to the zeal of its adherents and the appeal of its dogma…

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited…

Justice Burger was suggesting that the best way to remain faithful to the ideal is to remain flexible with the specifics. Pragmatic, yet poetic.

Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference…

Once one successfully navigates “there is room for play in the joints productive of a benevolent neutrality,” this is either a doggedly practical or maddeningly evasive approach. Burger seems to be confessing a certain degree of “figuring it out as we go” by the Court – although in this case, that “figuring” includes fifteen pages of detailed analysis and historical background.

The Lemon Decision

As with Walz, Chief Justice Burger wrote the majority opinion. He again acknowledged the difficulty of neither promoting nor hindering religion, but this time laid out what would become known as “The Lemon Test” – one of the most enduring bits of jurisprudence from the Burger Court. (Also, it’s fun to say “Burger Court” and mean something totally for real and serious.)

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion” …

Or, rephrased to apply more specifically to the case at hand:

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority…

Justice Burger went on to explain how very clearly religious these private schools were. Most were located on the same grounds or in close proximity to associated churches. Religious symbols pervaded each campus. Roughly two-thirds of the instructors were nuns. To cap it all off, the Catholic faith was pretty explicit about the fact that a large part of the reason they had parochial schools to begin with was to spread their faith. So were they religious?

Well… yeah.

But what about Allen a few years prior?

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books.

Good to know someone realized that. If only he’d added “or online coursework.”

In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.

Despite several more pages of explanation, that pretty much sums it up. The balance between pushing religion and punishing it is a tricky one, yes – but in this specific situation, the Court decided, the state had some seriously conflicted inhering going on.

It wasn’t malicious. It simply wasn’t fair to expect teachers to completely separate their spiritual function from their secular labors.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.

Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

Finally, expecting the state to supervise or punish violations of this unattainable “total separation” created the exact sort of entanglement the First Amendment hoped to circumvent. It made the government into the theology police.

To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions…

Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

In other words, the unacceptable entanglement between state and church starts with a well-intentioned effort to protect both from unconstitutional interaction. That said, one can’t help but wonder whether it was Justice Berger himself or some smirking law clerk who thought “prophylactic contacts” was a great way to express this. Then again, perhaps when it comes to phrasing we should allow written opinions a little play in the joints.

The Aftermath

So, bus fare and math books are OK. Government-led prayer or devotional readings are not. And, after Lemon, direct support to sectarian schools – under whatever formula – was out as well (at least for the next half-century). There would be other church-state cases in subsequent years, but those coming closest to the issues in Lemon involved questions of “school choice” and “vouchers.” Because the aid in question is primarily intended for parents and students, proponents argue these options are entirely constitutional – just like in Allen or Everson. Opponents insist that the intent and actual impact of such programs hurts public schools in favor of sectarian institutions, which seems like it must violate something in the “Lemon Test,” and is in any case has the state once again inching towards entanglement without the appropriate prophylactics.

In short, the “Lemon Test” brought some much-needed clarity to issues involving the separation of church and state. Shortly thereafter, people found a way to complicate it again.

Excerpts from Lemon v. Kurtzman (1971), Majority Opinion by Chief Justice Warren Burger {Edited for Readability}

In Everson v. Board of Education (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There, Mr. Justice Black, writing for the majority, suggested that the decision carried to “the verge” of forbidden territory under the Religion Clauses. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be “no law respecting an establishment of religion” … A given law might not establish a state religion, but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity” (Walz v. Tax Commission, 1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years… First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 1968); finally, the statute must not foster “an excessive government entanglement with religion” (Walz).

Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate…

The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission, and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions… We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion…

Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable… Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was, in fact, being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship…

The church schools involved in the {Rhode Island} program are located close to parish churches… The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools…

On the basis of these findings, the District Court concluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose…

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation…

The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably, some of a teacher’s responsibilities hover on the border between secular and religious orientation.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church…

Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life… The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses… The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.

 

Holt v. Hobbs (2015): Who Then Can Be Shaved?

~ Blue Cereal

Three Big Things

1. The Religious Land Use and Institutionalized Persons Act (RLUIP) passed by Congress in 2000 requires (among other things) that states go a little further than absolutely demanded by the First Amendment to protect inmates’ religious expression. Prison officials may still do what’s necessary to maintain order, but they must make every effort to accommodate faith while they do.

2. Arkansas didn’t allow prisoners to grow beards – even short ones – unless they’d been diagnosed with specific skin disorders making a short beard desirable. Greg Holt, a devout Muslim going by the name Abdul Maalik Muhammed, asked for a religious exemption allowing him to grow a half-inch beard. Prison officials said no.

3. The Supreme Court found in favor of Holt because officials had numerous options to accomplish the same goals (safety and security) without infringing on Holt’s sincerely held religious beliefs.

The Situation

The Arkansas Department of Corrections doesn’t allow prisoners to grow beards (with some exceptions made for inmates with specific skin conditions). The argument was that inmates could conceivably hide contraband in their beards and that shaving them off would allow them to quickly change their appearance should they escape.

One suspects these were largely rationalizations, but prison isn’t primarily intended to be a great place for personal expression, so maybe officials have the right to tweak a few rules for their own purposes.

Greg Holt, aka Abdul Maalik Muhammed, requested an exemption on religious grounds. As a good Muslim, he explained, he shouldn’t be trimming his beard at all, but as a compromise with the system, he wished to maintain a modest one-half inch beard as a symbolic gesture of adherence to his faith. Prison officials said no.

Holt filed suit in the nearest district court. (As a civil rights issue, rather than a criminal complaint, the federal courts were the appropriate venue.) The state argued that the system made allowances for Holt to express his faith in other ways – they weren’t trying to keep him from practicing his religion within reason. It also pointed out that not all Muslims believed the beard thing was a big deal. Most of all, however, much like with questionable police actions, the courts should defer to those doing the actual job and not second-guess every detail from afar.

They put that last bit more professionally, of course.

Holt appealed to the Eight Circuit Court, which affirmed the decision. The general guideline in such cases is that government at any level should avoid restricting free exercise of religion whenever possible. When religious actions conflict with otherwise neutral, reasonable laws or procedures, the government must seek out the “least restrictive means” of satisfying its goals – in this case, prison security. If the result is that some religious behaviors are curtailed, that’s unfortunate, but not necessarily unconstitutional.  

Holt and his advocates appealed to the Supreme Court, who agreed to hear the case during its 2014-2015 session. The Court, in a unanimous decision, found in Holt’s favor.

The Decision

While the case certainly involved the issue of free exercise as protected by the First Amendment, the specific legislation guiding such things was the Religious Land Use and Institutionalized Persons Act (RLUIPA) passed by Congress in 2000 with the dual goals of making it easier for inmates to bring suits just like this one and protecting local churches from zoning regulations and other rules applicable to other businesses or organizations. The Court had struck down parts of an earlier effort, 1993’s Religious Freedom Restoration Act (RFRA), so with RLUIPA Congress focused on two areas it felt were more clearly in its purview – land use and the prison system.

The majority opinion, written by Justice Samuel Alito, begins by acknowledging that the prison system has a right to first consider the issue of “sincerity” when religious claims are made. While the specifics of testing such things could potentially get messy, this has long been one way courts allow institutions to push back against frivolous uses of faux religious claims by prisoners, employees, or the like, to circumvent rules or expectations they simply don’t like. In this case, there was no doubt of Holt’s sincerity; he was a devout Muslim in word and deed and no one on either side was challenging this.

The lower courts had erred, however, in their assumption that because Holt was allowed to practice his faith in other ways, that somehow offset the beard issue. He was still literally being forced to choose between violating his own religious beliefs (by shaving) or being punished by the system. If the issue were purely a free exercise claim based on the First Amendment, the existing accommodations might have been more of a consideration. Under RLUIPA terms, however, the state is required to bend much further than that.

As to the argument that some Muslims didn’t have beards, this seriously missed the point of about a zillion previous Supreme Court decisions. Government entities can consider overt indications that someone is just messing with them (“my religion says I have to get drunk and have sex with beautiful women every Thursday”), but they don’t get to parse the validity of individual beliefs beyond that.  

Now came the issue of “least restrictive means.” The Court was not convinced that a half-inch of beard growth was such a serious threat to prison security that it justified violating free exercise. Even if officials were genuinely concerned about all the items potentially hidden in that half-inch, a quick search here and there wouldn’t consume much in terms of time and resources. If they wanted to know what an inmate looked like without the beard, take a picture of him without it, then let him grow it back. Many other prison systems accommodate beards without it leading to a complete breakdown of security – perhaps Arkansas could get a few tips from them.

Perhaps most damning for the state’s position was the allowance of one-quarter inch beards for prisoners with specific skin conditions and the lack of additional security measures designed to deal with these furry incubators of subversive behavior. In other words, the system accommodated non-religious beards quite easily and only made an issue of beards grown for religious purposes.

That sort of distinction is usually a deal-breaker with the Court these days. It certainly was here.

Concurring Opinions

Alito’s opinion cites several other cases by way of support for various points, but none so often as Burwell v. Hobby Lobby Stores, Inc. (2014) from the previous term. In that case, the Court had ruled (in a 5-4 split) that RFRA allowed companies like Hobby Lobby to deny its employees health coverage for stuff like contraceptives based on the organization’s religious beliefs. Justice Alito had written the majority opinion for the Hobby Lobby case as well, and it was no doubt fresh in his mind. The Holt opinion references it more than every other case it cites combined.  

Thus the very brief written opinion of Justice Ruth Bader Ginsburg, who pointed out that while she agreed with the results, this case was different than Hobby Lobby because “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”

Justice Sonia Sotomayor joined Ginsburg’s concurring opinion but added her own as well. It primarily seeks to clarify that officials still have options for enforcing whatever rules may be necessary, they simply have to do so within the confines of RLUIPA. She also notes that the policies in question were rejected by the Court because they failed to meet the standards required in the legislation – not because the majority (via the words of Justice Alito) thought they were stupid… because let’s be honest, he mostly just loves snippy and critical.

OK, she didn’t come right out and put it that way – but you read it and tell me that’s not what she meant. I dare you.

Holt v. Hobbs (2015): Excerpts from the Majority Opinion by Justice Samuel Alito

We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), “in order to provide very broad protection for religious liberty” (Burwell v. Hobby Lobby Stores, Inc., 2014)  RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment…

Section 3 {of RLUIPA} provides that “{n}o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution… even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.” … Congress mandated that {these guidelines} “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise” (Hobby Lobby).
Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “{n}o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs…

Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation (see Hobby Lobby). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.

{P}etitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation… If petitioner contravenes {prison} policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise…

{T}he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights (see O’Lone v. Estate of Shabazz, 1987 {and} Turner v. Safley, 1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise… not whether the RLUIPA claimant is able to engage in other forms of religious exercise…

{T}he District Court {also} went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic… But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect” (Thomas v. Review Board of Indiana Employment Security Division, 1981). …

The Department argues that its grooming policy represents the least restrictive means of furthering a “broadly formulated interest,” namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “more focused” inquiry and “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” …

The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.

(A) The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.

We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously… An item of contraband would have to be very small indeed to be concealed by a half-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a half-inch beard rather than in the longer hair on his head…

Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a half-inch beard actually furthers the Department’s interest in rooting out contraband.

Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband… The Department already searches prisoners’ hair and clothing… And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard…

(B) The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities… But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here…

The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter… In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during {his} incarceration.” (Arkansas Department of Correction Inmate Handbook)…

In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department… has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a half-inch beard, it permits prisoners with a dermatological condition to grow quarter-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a half-inch of hair on their heads… Hair on the head is a more plausible place to hide contraband than a half-inch beard – and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “{t}he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993)…

Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow half-inch beards, either for any reason or for religious reasons, but it cannot… That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here…

We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security… {For example,} if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic” (Cutter v. Wilkinson, 2005)… {Also,} even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.

In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a half-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Holt v. Hobbs (2015): Concurring Opinion by Justice Ruth Bader Ginsburg

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc. (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Holt v. Hobbs (2015): Excerpts of Concurring Opinion by Justice Sonia Sotomayor

I concur in the Court’s opinion, which holds that the Department failed to show why the less restrictive alternatives identified by petitioner in the course of this litigation were inadequate to achieve the Department’s compelling security-related interests. I write separately to explain my understanding of the applicable legal standard.

Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson (2005) that “context matters” in the application of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” … Thus, we recognized “that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area” (Cutter)…

Here, the Department’s failure to demonstrate why the less restrictive policies petitioner identified in the course of the litigation were insufficient to achieve its compelling interests – not the Court’s independent judgment concerning the merit of these alternative approaches – is ultimately fatal to the Department’s position. The Court is appropriately skeptical of the relationship between the Department’s no-beard policy and its alleged compelling interests because the Department offered little more than unsupported assertions in defense of its refusal of petitioner’s requested religious accommodation. RLUIPA requires more.

This Post Is Part Of “Have To” History. You can find more rambling and rough drafts there.

 

Stomping Decisis / A Matter of Degrees (Introduction)

~ Blue Cereal

NOTE: I’m toying with the idea of a follow-up volume to both “Have To” History: Landmark Supreme Court Cases and “Have To” History: A Wall of Separation. The working title is Stomping Decisis (I’ll probably change it if I can think of something better) and the central subject would be major Supreme Court decisions of the Roberts Court with focus on the past few years and the nature of the Court’s lurch to the far right. We’ll see if it actually happens. 

What follows is a rough draft of one possible introduction. I’ve begun playing with the intro this early in the process because I’m trying to figure out the exact approach and “shape” of the book if I actually end up writing it. I’m not even sure at this point if this intro even makes sense or fits where the book is likely to go, but one sure way to get honest feedback is to put it out there and see what happens. Plus, I haven’t posted anything in over a week, and it seemed time. 

As always, your comments and questions are welcome below or via email. You are appreciated. 

MAGA JusticeStomping Decisis (Introduction)

In the spring and summer of 2022, the United States Supreme Court began announcing its findings in the dozens of cases it chose to hear that session. As its decisions began to circulate, there was much rejoicing on the far right and substantial shock from progressives and moderates at the radical direction the Court seemed to be taking. Apparently, social media informed us, states now have to pay for religious education (including overt homophobia and science denial) and public school teachers can pray in front of their students. States are no longer allowed to regulate guns and the C.I.A. doesn’t have to tell anyone the locations of its favorite torture chambers. The Environmental Protection Agency is prohibited from protecting the environment quite so much. Oh, and yes – Roe v. Wade has been overturned. Everyone who gets pregnant for any reason, with their cooperation or without, must now carry the child through delivery whether it’s alive or dead and whether they’re likely to survive the experience or not. 

What the hell happened?

That’s what we’re going to look at in the following pages – once we get through a few spoilers by way of context. 

First, while the Court’s decisions absolutely indicate a lurch to the far right, the descriptions above aren’t entirely accurate or fair – at least not for every case. The emotional reactions many of us experienced (and may still be experiencing) are perfectly understandable and perhaps even justified, but once our collective blood pressure has stabilized a bit, it’s worth looking at precisely what the Court did and didn’t say in its recent decisions. It’s not always as insane as it sounds at first. (Well, except some of the parts written by Justice Thomas.)

Second, shifts like these rarely come completely out of nowhere. It’s easy to miss the signs along the way because most of us have busy lives and other things to pay attention to. When we hear on the news that the Court “saved” the Affordable Care Act or neglected to overturn Roe, we file it all away under “no change” even if that’s not the full story. We rarely dig deeper to see what, in fact, they did say. Sometimes the details just aren’t quite right yet. Other times, the Court is still too ideologically balanced to allow destabilizing lurches to the left or right without better reasons. 

Spoiler alert: that last one is not currently an issue. The far right is in complete control of this Court and will be for the foreseeable future. 

Finally, many of the issues addressed in these cases are simplified and summarized as a practical matter during most media coverage. The Court’s reasoning can get a bit verbose or technical. Other times, there are legal technicalities impacting the specific decision but not directly related to the larger issues involved. And, to be fair, the average American isn’t well-known for their firm grasp on the U.S. Constitution and its amendments or landmark jurisprudence over the past century.

If that’s you, don’t feel too bad – it’s possible you’ve simply had better things to do than slog through this stuff repeatedly during each slew of announcements. 

A Matter Of Degrees

Activists and ideologues have a vested interest in keeping their audiences as stirred up as possible by unfolding events. (That doesn’t mean they’re always wrong – merely that they’re not always the most rational, balanced folks in the conversation.) One of the most foundational means of maintaining this is to repeatedly frame everything in terms of dichotomies – this belief vs. that one, this value vs. the opposite value, and perhaps most importantly, us vs. them.  

In reality, however, there aren’t that many issues over which a clear majority of Americans absolutely, dogmatically disagree in all possible situations. Most of the time, controversies come down to matters of degrees. We’re often working with the same basic sliding scale; we just don’t like where the other guy is trying to mark what’s acceptable and what’s not in ways which then impact all of us.   

Take, for example, the issue of religion in public schools. There are two clauses in the First Amendment which involve religion – the very first two, in fact:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

That’s it. Sixteen words. These are where all the kerfuffles begin. 

The first bit is known as the Establishment Clause. It’s widely understood to mean that government (including states and local governments, thanks to the Fourteenth Amendment) should avoid doing anything that promotes religion in general, or one type of religion or belief system over another. The second part is the Free Exercise Clause. It says that government shouldn’t do anything to hinder or punish religious beliefs or practices. In short, government at all levels should simply stay out of people’s religions. 

It certainly sounds straightforward enough. How hard could this be? 

Now, imagine that there’s a fire in a little Methodist church down the street from wherever you are now. You’ve never been there, but they seem nice enough. Should the fire department rush to the scene and try to save the church, or merely stand by ready to protect nearby homes and businesses if the flame starts to spread?

Most people would insist that the fire department should respond and treat the situation the same way they would any other fire. I could argue, however, that this is a violation of the Establishment Clause because the city is using public resources to promote religion. The faster those firefighters respond and the harder they work, the less damage that fire will do and the more resources that little church will have left over to proselytize and organize potlucks and run Vacation Bible School over the summer.

The same is true of police protection. Road repairs. Ambulance service. You get the idea. Our tax dollars help religious people and organizations all the time. If state or local government refused to do for that little church what it does for every everyone else in town just, it would in effect be punishing church members for their faith. If they wish to participate in the traditions and activities of their religion, they must give up benefits they could have if they weren’t being all “religious.”

Sliding The Scales

Now let’s imagine that we’re not talking about fire or police protection, but public transportation. The city has invested in some stylin’ new shuttles and wants to make it easy for people to get around, no matter what their income levels. There’s a small cost for a ticket to the airport, the mall, downtown, or the theater district, but tickets are free for passengers going to school, a public library, the local health department, or any of the churches along the route – including that little Methodist chapel we’ve been discussing.

How about now? Is this the same as fire protection and road repairs, or is this a special benefit for religion? It’s not even for all religions – just churches which happen to be near established routes! We’re still pretty close to the “put out the fire” end of the scale, but we’re definitely moving a bit. 

Maybe the county has been given funding to improve the lives of children in the area. As part of this, they’re offering to pay for playground upgrades (including that bouncy foam stuff to replace dirt or sand) for any qualifying site. Several schools secure the grant, as does the privately managed area outside the Children’s Science Museum across town. Should our church down the street be allowed to apply as well on the same terms as everyone else? On the one hand, it’s just a playground. On the other, they make no secret of their desire to bring kids into their faith. They use their playground extensively on Sundays and during Vacation Bible School, even though it’s accessible to the neighborhood year-round. 

We’re definitely further along that scale now. Are you still comfortable with letting them partake, or have we crossed a line somewhere along the way from “free exercise” to “establishment”?

As the church grows, perhaps they add a homeless shelter and food pantry comparable to those in other parts of town which receive government grants to support their efforts and ask for similar assistance. Should the state allot funds to this location as well? Would it be OK if the state only provided funds on the condition they be used exclusively for food and shelter and not in direct support of proselytizing or other religious teaching? Does such a distinction even matter when every dollar the church doesn’t have to spend on bread and peanut butter can go to providing Bibles?

Where are we on that scale now?

Homelessness often involves mental illness or other extenuating circumstances. Now the church wants to incorporate counseling and rehab services. Their personnel are trained professionals, but they’re also faithful Christians who share elements of their faith during discussions with clients. If the state supports these efforts to the same extent they do secular services, they’re definitely supporting religion now – right? So what if they only support the “clinical” parts of the counseling and not the “religious” parts. Like, every time someone mentions Jesus, they hold down a button that stops the timer for a bit or something. What do you think now?

Perhaps there’s a lawyer or two in the congregation and the church gradually becomes a primary provider of adoption services in the area as part of their mission to serve the community around them. They’re not comfortable placing children with same-sex couples or divorced women, however. This service isn’t even receiving direct government funding, although it does have to contend with the complex web of laws regulating adoption and they’ve effectively become the only real option in this half of the state. Should they be allowed to pick and choose who they’ll serve, like restaurants in the 1950s?

While we’re at it, we might as well have our little Methodist church start its own private school and ask for the same per-student funding as the public school down the street. We’re not quite to the opposite end of that sliding scale from where we started, but we’re heading that way at a good clip. 

Let’s cap the far end with your legislature declaring the United Methodist Church the official religion of your state and instituting a new tax enabling them to pay for Methodist Preachers and more Methodist buildings. They will not, however, imprison or execute you for believing differently – as long as you pay your taxes. Unless you’re Clarence Thomas, you probably wouldn’t consider that a good balance between establishment and free exercise, meaning somewhere along our scale (or in one of the endless variations continually complicating the issue in real life), you decided there’d been enough “free exercise” and the government was now veering into “establishment.” Lines needed to be drawn to clarify the difference. 

And, if you’re like most Americans, you consider wherever you drew the line to be so obvious that anyone too far right or left of your mark is a bit of a wacko, and possibly dangerous.  

Staking Out Positions

In each iteration, treating the church’s efforts the same as other institutions risks promoting their religion, thus violating the Establishment Clause. The church’s activities aren’t independent of its beliefs; this particular little church strives to serve people and their community because they believe that’s what Jesus wants them to do. On the other hand, treating the church differently than other groups might very well infringe on their faith by denying them the same cooperation or support they’d receive if they weren’t religious (or if they gave up their faith). This violates the Free Exercise Clause. 

Just to complicate things, sometimes the same rules which govern how states or communities relate to or support private organizations are at odds with the specific belief systems of a particular religion. In other words, sometimes treating that little Methodist church the same as everyone else infringes on their free exercise just as much as excluding them altogether. This is when things get really interesting (or maddening, depending on your point of view). 

We can argue the details (they’re very much worth arguing), but the point is that the Establishment Clause and the Free Exercise Clause pull against one another in ways that mean anytime we try to protect one, there’s a chance we’re offending the other a little bit. I’m not aware of any major “wall of separation” cases in which either party has argued in favor of simply eliminating one clause or the other. Where the disagreement comes is precisely where on that sliding scale the lines should be drawn. 

The same sorts of “sliding scales” are present in most debates over the death penalty, immigration policy, reproductive rights, and the like, as well as many issues less likely to end up in the Supreme Court – school dress codes, regulations imposed by your local homeowners’ association, and speed limits just to name a few. This doesn’t suggest that all possible points along each scale are equally defensible or that there are no “right” answers (constitutionally speaking), but recognizing the relative nature of these arguments is often essential to making sense of them along the way and understanding the Court’s rulings and how they sometimes change over time.  

That’s what we’re going to try to do here by visiting a variety of recent Supreme Court decisions and what different justices specifically said about those decisions (whether in support or opposition). We’re also going to zoom in on a few representative topics and trace some of their jurisprudential history over the past century in order to better understand where we are now, and why. 

At every stage, my goal is to keep things as understandable as possible without overly compromising the substance of each argument or issue. It’s worth keeping in mind that I write this book not as a legal expert, but as an educator with twenty-plus years breaking down complex historical and legal issues for teenagers to better help them wrestle with many of these same subjects for themselves. While I certainly have my own points of view on most of these topics (and you’ll have little trouble figuring out what they are along the way), I’ve made every effort to make this material accessible, enjoyable, and useful for readers of all stripes.

Except Justice Clarence Thomas. I doubt he’d enjoy this one at all.