Some described the reinvigorated Conservative majority as resolutely pro-religion. More specifically, the majority can be described as hypervigilant against religious discrimination. Not surprisingly, this dovetails with how religious freedom has been mobilized in the culture wars.
Religious freedom or religious discrimination?
On June 21, the court rendered its decision in Carson v. Makin, a case involving Maine’s funding of free public education. In rural areas where families had no public school options, the state provided public funds for students to attend different public schools or non-denominational private schools. The challengers argued that the exclusion of religious private schools violated the First Amendment clause protecting the free exercise of religion. Chief Justice John G. Roberts Jr. wrote for the 6-3 majority, divided along ideological lines, in favor of religious schools, citing a series of recent rulings, including a case 2020 from Montana.
In his ruling, Roberts pointed out that Maine’s exclusion “discriminates against religion,” which the court found to be a clear violation of the First Amendment’s free exercise clause. He added that the First Amendment’s prohibition on the government “establishing” a religion – the Other Religion Clause in the constitution – “does not justify laws that exclude certain members of the community from benefit. public otherwise generally available because of their religious exercise”.
The emphasis of the Conservative majority was clear. Concerns about the establishment of a religion should not lead to discrimination against followers of a religion.
In Kennedy v. Bremerton, a high school football coach, Joseph Kennedy, argued that he was discriminated against when the school fired him for offering postgame prayers on the field. That of the Supreme Court decision solidified this view. Judge Neil M. Gorsuch wrote the opinion, again split on ideological lines 6-3, arguing that the school was wrong that it should “unearth and suppress religious observances even if it allows comparable secular discourse”. Gorsuch pointed out that “the Constitution neither imposes nor condones this kind of [anti-religious] discrimination.”
Perhaps more importantly, to protect against anti-religious discrimination, Gorsuch officially declared an end to the “lemon test“, a three-part test to protect against government establishment of religion that was solidified in the 1971 Warren Burger court decision, Lemon vs. Kurtzman. The Lemon test had been on shaky ground for decades. In May, in a unanimous decision asking Boston City Hall to allow the display of a Christian flag on its public flagpole, conservative views suggested they would soon pass over Lemon. In LemonInstead, Gorsuch explained that the court would interpret the Establishment Clause by “reference to historical practices and understandings,” which minimizes the separation of church and state.
My research shows that, as they sought to expand religious liberty protections, conservative Christian groups have long argued that Lemon was bad law and hostile to religion. In 1992, leading evangelical organizations urged the court to quash Lemon. The late judge Antonin Scalia once compared Lemon has a ghoul in a night horror film, which haunts First Amendment jurisprudence and cannot be killed. Over the past decade, however, the court has rallied to the conservative Christian position, downplaying Lemon and emphasizing free exercise concerns beyond those of the institution.
Supreme Court justices don’t pretend to respect each other
Treating religious freedom as a safeguard against discrimination fits broader culture war narratives
As stock Exchange showsthe language of discrimination is part of a larger political narrative some have promoted, arguing that religion is under threat in public life. Over the past decade, numerous surveys have documented a partisan divide regarding which groups are discriminated against. Pew Research finds that Republicans believe that American evangelical Christians face as much or more discrimination than Muslims and Jews, unlike Democrats. Large proportions of White evangelical Protestants believe in particular that Christians are regularly discriminated against.
In the 2020 election, political scientists Paul A. Djupe and Ryan P. Burge sent two polls who asked if people had heard claims circulating among some on the right that if the Democrats won the election, they would threaten religious freedom in a number of ways, including banning the Bible and otherwise taking away religious freedom from Christians. A substantial majority responded that they had heard such claims, even if they did not believe them.
Are gun laws constitutional? The courts must now look to history to decide.
Republican elites have perpetuated the idea that Christians are discriminated against
Republican candidates have mobilized these fears of Christian discrimination. President Donald Trump’s faith outreach team has often portrayed Democrats as threatening to Christians, arguing that they want to “dismantle the church.” First Liberty, the conservative Christian legal advocacy group that has litigated the Maine football coach and school cases, described the pandemic restrictions as a “total war on faith” in the 2020 press releases, arguing that they exposed the “real agenda of our adversaries: keeping our churches closed indefinitely and attacking religious freedom”.
When the Supreme Court emphasizes protection against religious discrimination, it does more than develop legal doctrine. Court rulings intersect with political culture wars, and some members have clearly promoted one side in their public comments. Nine days after the 2020 election, Judge Samuel A. Alito Jr. ruled a speech to the Federalist Society in which he maintained that the free exercise of religion was “rapidly becoming a disadvantaged right”.
In 1991, professor of law Ira Lupu said that the constitutional era in which the separation of church and state “is the dominant theme seems to be over”. Thirty years later, the Supreme Court has made it clear that the defense of the free exercise of religion is dominant, with particular emphasis on protection against discrimination against religion. It comes at a time when some Americans see religion as under threat, fusing constitutional doctrine with culture wars.
Andrew R. Lewis (@AndrewRLewis) is an associate professor in the School of Public Affairs at the University of Cincinnati, author of “The Rights Shift in Conservative Christian Politics: How Abortion Transformed the Culture Wars(Cambridge University Press, 2017), and co-editor of the political science journal Politics & Religion.