The composition of the Supreme Court has led to a significant shift in how religious liberty cases are decided, with the current conservative majority frequently favoring religious conservatives and reinterpreting constitutional clauses related to religion.
A New Approach to Religious Exemptions
A pivotal moment in this shift occurred with the 2020 decision in Roman Catholic Diocese of Brooklyn v. Cuomo. This ruling, which concerned COVID-19 attendance restrictions for houses of worship, marked a departure from previous legal standards. Prior to this, religious institutions generally had to comply with state laws unless those laws specifically targeted religious individuals for discriminatory treatment. However, Roman Catholic Diocese held that churches should be subject to the least restrictive rules applied to any secular business, even those with minimal transmission risk. This decision signaled a new approach where the Court more readily grants religious exemptions from state laws.
This evolving judicial philosophy has extended to various cultural disputes. Lawsuits seeking religious exemptions are increasingly used to resolve conflicts between Democratic and Republican constituencies, with outcomes often favoring the latter. This pattern aligns with the Court's decisions in other areas, including voting rights, abortion, and race, suggesting a broader effort to advance policy goals popular within the Republican Party.
The broader implications of this new approach to religion cases are far-reaching. It threatens the operational capacity of public schools, potentially weakens anti-discrimination laws, and may transform future conflicts between secular and religious viewpoints into constitutional matters adjudicated by the Supreme Court.
Balancing Competing Constitutional Clauses
Religion cases before the Supreme Court often grapple with the tension between two First Amendment clauses: the Free Exercise Clause, which protects the right to practice one's faith, and the Establishment Clause, which prohibits government endorsement of religion. Historically, the Court sought to balance these provisions, allowing states leeway in navigating conflicts between religious practices and secular laws.
Under the current Court, there has been a move to centralize the resolution of these tensions, reducing the autonomy of states. This has led to policies that restrict states' abilities to address issues such as anti-LGBTQ discrimination by religious businesses or to set terms for religious schools receiving public funds. Critics argue these decisions impose a uniform, conservative vision across diverse states and may even compel government funding of religious institutions in ways that some conservative states themselves reject.
The Court's interpretations have increasingly elevated religious freedom over other liberties and are seen by some as dismantling the traditional separation between church and state.
The Evolving Interpretation of Free Exercise
The legal framework for religious exemptions has evolved through key Supreme Court cases. The "compelling state interest" test, established in Sherbert v. Verner (1963), suggested that laws burdening religious practice required strong justification. However, the Court later limited this, particularly with Employment Division v. Smith (1990), which held that laws of general applicability, even if they incidentally burdened religious practice, were permissible if applied equally to religious and non-religious individuals.
Congress attempted to restore broader religious protections with the Religious Freedom Restoration Act of 1993 (RFRA). However, the interpretation of RFRA has been a point of contention. In Burwell v. Hobby Lobby (2014), the Court ruled that for-profit employers could refuse to provide contraceptive coverage based on religious objections, a decision that prioritized individual religious beliefs over employee rights.
Since Hobby Lobby, the Court has frequently ruled in favor of religious objectors, particularly when their claims conflict with laws protecting LGBTQ individuals. This has led to a perception that in disputes between religious conservatives and LGBTQ people, the latter often lose.
Church and State in Education Cases
The Supreme Court's rulings on religion in public education have also empowered religious conservatives and have been interpreted by some as weakening the separation of church and state. Cases have addressed issues such as parents opting children out of lessons featuring LGBTQ characters and requirements for teachers to disclose students' transgender identities to their parents.
More broadly, the Court has challenged the long-held understanding that the Establishment Clause necessitates a separation between government and religion. While earlier rulings like Everson v. Board of Education (1947) emphasized strict separation, more recent decisions have shifted this perspective. The ruling in Carson v. Makin (2022), for instance, mandated that states provide private school vouchers for religious schools if they offer them for non-religious schools, effectively reversing previous prohibitions against taxpayer funding of religious institutions.
Under the Court's current interpretation of the Establishment Clause, violations are narrowly defined as compelling religious observance or coercing formal religious exercise. This leaves open the possibility for significant government funding of religious institutions, even those holding views many find objectionable, such as discrimination against LGBTQ individuals or specific gender roles.