Government neutrality toward religion is a crucial principle for the protection of religious freedom. However, the Supreme Court, pushed by the religious right and its most conservative justices, has eroded this key protection, moving toward a one-way ratchet in favor of religion. Under this legal regime, not only would churches and other religious institutions be treated equally with others when it comes to federal allocations, they would also get a clear preference when they object to generally applicable anti-discrimination or other laws.
As the damaging Trinity Lutheran decision shows, even some moderates on the Court are inching toward this view. With a number of cases on the Court’s docket this fall, including a headline-making case involving a Colorado bakery, that raise important questions about the government neutrality toward religion, it is vitally important to understand the danger that this one-sided approach to the First Amendment poses to religious liberty, civil rights, and other values.
The principle of government neutrality toward religion is grounded in the First Amendment’s two religion clauses: the Free Exercise Clause, under which government must not substantially burden the exercise of religion without a compelling government interest, and the Establishment Clause, under which government must not establish or promote religion. Taken together, these constitutional protections require that government be neutral toward religion, neither favoring nor disfavoring any specific religion or religion generally.
But what does neutrality mean in practice? The Court has long recognized that it does not mean that religious institutions or people are treated just like everyone else. If it did, that would have meant that the Amish in Wisconsin would have been required to send their children to high schools, even though it violated their practice of religion. It would also have meant that just as a school district can start each day requiring that students recite a poem, it could mandate daily Bible reading.
The Court rejected those versions of neutrality in the landmark cases of Wisconsin v. Yoder and Abington v. Schempp. The Court and legal scholars have explained that what the Constitution requires is not formal neutrality, but true or substantive neutrality—sometimes treating religion a little differently so that the net effect of government is to “neither advance nor impede religious activities,” as Justice Harry Blackman noted writing for the majority in Roemer v. Board of Public Works of Maryland.
During most of the period between World War II and the turn of the century, the Supreme Court sought to apply the principle of true neutrality to protect religious people against government mandates that substantially burdened their exercise of religion without a compelling government reason. This principle was applied not only when government singled out religious believers. The Court also ruled that where a neutral law, like the school attendance requirement in Yoder, actually caused a substantial burden on religious exercise, the religious adherents could be exempt from the law, as long as there was no very important countervailing government interest or harm to other people.
During this same period, the Court also applied the principle of true neutrality to prevent government funding from supporting religion. One of the basic principles of the Establishment Clause, as recognized by our founders, was that government cannot require a person to contribute even “three pence” of tax money that will be used to support religion. As the Supreme Court put it in Everson v. Board of Education,“[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions.”
Historically, the Supreme Court upheld these principles, striking down laws that provided state funding to religious schools or upholding state laws that excluded religious education from state subsidy programs. The Court ruled in Committee for Public Education v. Nyquist that a New York law that provided maintenance grants to predominantly religious private schools and tuition reimbursement to parents violated the Establishment Clause. In Locke v. Davey, the Court upheld Washington’s exclusion of students who wanted to pursue religious studies from receiving state education grants.
Beginning in the 1990s, however, the Court began to abandon the principle of true neutrality toward religion, led by conservatives on the Court. Establishment Clause protections were weakened in Zobrest v. Catalina School District, in which a 5-4 Court ruled that providing interpreter services to deaf students at religious schools at public expense did not violate the Establishment Clause, even though the dissenters explained that the Court should not even have decided the constitutional issue. In a crucial 5-4 decision in Zelman v. Simmons-Harris, a Court struck down part of the Nyquist decision and upheld an Ohio program that provided state-funded vouchers to parents of students attending predominantly religious private schools.
Protections for individuals’ religious freedom under the Free Exercise Clause were dramatically weakened in a Court 5-4 opinion written by Justice Scalia in Employment Division v. Smith. That case involved Native Americans who were denied unemployment compensation after being fired for having used peyote as part of a religious ceremony. Scalia wrote that because the state’s drug law had not specifically targeted religious practice, and was neutral on its face, there was no violation of the Free Exercise Clause and the government did not have to show a compelling government interest to apply the law to the religious adherents.
Even though she agreed with the ultimate decision, Justice O’Connor sharply criticized Scalia’s reasoning, noting that it “dramatically departs from well-settled First Amendment jurisprudence.” Congress responded by enacting the Religious Freedom Restoration Act (RFRA), which attracted bipartisan support and restored in federal legislation the pre-Smith test for neutral laws that substantially burden religious adherents. The Court later limited the reach of RFRA, ruling in City of Boerne v. Flores that RFRA could constitutionally apply only to actions by the federal government, not state or local government.
Recent decisions by the Court, led by hard-right justices like Samuel Alito and Clarence Thomas, continue to head in an even more dangerous direction. Based on a major misinterpretation of RFRA, the 5-4 majority made it much easier for religious adherents to exempt themselves from laws they object to. That decision threatens to completely exempt people with religious objections from civil rights laws and to and substantially harm discrimination victims of discrimination. At the same time, the Court has further weakened Establishment Clause protections. It may be on the verge of ruling that religious schools and other institutions not only can but must receive government funding whenever secular institutions do, even when state constitutions explicitly prohibit government funding of religion.
In Burwell v. Hobby Lobby Stores, Inc., the Court ruled 5-4 that for-profit corporations with religious owners can use RFRA to exempt themselves from paying for contraceptive coverage for their employees as required under the Affordable Care Act (ACA). As Justice Ginsburg’s dissent explained, the majority had clearly gone beyond RFRA not only in holding that a for-profit corporation could use the law but also in ruling that a religious objection to a government requirement on business was enough to constitute a “substantial burden” on the exercise of religion.
The Court rejected that same argument prior to Smith when religious adherents claimed that their exercise of religion was substantially burdened by a requirement that they use Social Security numbers in business (United States v. Lee). Based on religious liberty principles before Hobby Lobby, the employer’s religious objections simply did not constitute a “substantial burden” on religious exercise.
Just as importantly, as Justice Ginsburg explained, the Hobby Lobby majority disregarded previous rulings that religious exemptions should not be permitted when the result would harm innocent third parties. This included the employees in Hobby Lobby itself as well as racial minority store patrons who would have been harmed if a religious exemption to civil rights laws had been allowed. Until Hobby Lobby, the courts had consistently rejected such religious exemption claims.
In the coming Supreme Court term, Americans may learn whether the current Court majority will in fact grant a religious exemption to an anti-discrimination law. In Craig v. Masterpiece Cakeshop, Inc., the Colorado Civil Rights Commission ruled that a bakery that refused to sell a wedding cake to a same-sex couple had violated state law prohibiting sexual orientation-based discrimination by businesses engaged in sales to the public. Courts in New Mexico, Washington, and elsewhere have also upheld the enforcement of these laws. But in late June, after Justice Gorsuch’s confirmation, the Supreme Court agreed to review the bakeshop’s claim that it should be exempt from the anti-discrimination law because of the owner’s religious beliefs.
It is too soon to tell how the Supreme Court will resolve the case. But in their initial brief to the Court, the bakery and its owner claim they should be exempt from the state civil rights law because of the owner’s religious beliefs against same-sex marriage, just as the anti-contraception religious beliefs of the owners resulted in the exemption in Hobby Lobby. RFRA does not apply in Masterpiece since it concerns state and not federal law, but the bakery claims an exception to Smith applies to them.
A ruling in favor of the bakery would not only undermine the marriage equality protections in Obergefell and weaken statutes combatting anti-LGBTQ discrimination, but it would also authorize a much broader “religious exemption to civil rights laws that could allow discrimination” based on gender, nationality, race and other grounds.
Even as it has moved toward granting religious-based exemptions from laws to which some religious adherents object, the Court has moved toward requiring that states grant financial benefits to religious groups. Specifically, the Court ruled recently in Trinity Lutheran Church v. Comer that it was improper for Missouri to exclude churches from a state government program providing funding for playground equipment because of the church’s religious status.
Not only did the Court fail to find that providing state funding would violate the federal or state versions of the Establishment Clause, it also ruled that the church’s exclusion from the funding program violated the federal Free Exercise Clause. Seven justices joined the holding, including moderate justices Kagan and Breyer.
Justice Sotomayor’s dissent explained the fundamental problem with Trinity Lutheran. As the church has stated, she wrote, the playground is used “to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers.” Thus the church’s “playground surface—like a Sunday School’s walls or the sanctuary’s pews – are integrated with and integral to its religious mission.” Accordingly, she concluded, funding the playground with taxpayer-provided government money “would impermissibly advance religion” in violation of recognized Establishment Clause principles.
Perhaps to secure the expanded majority, Chief Justice Roberts added an important footnote to the decision, making clear that its holding concerned only “express discrimination based on religious identity with respect to playground resurfacing” and did not extend to other state funding programs, a limitation that conservative Justices Gorsuch and Thomas criticized. While the Court has not yet accepted any similar cases, there can be no question that the religious right will pursue “a great deal of litigation” in this area. In fact, a religious right advocacy group recently filed a lawsuit on behalf of Texas churches claiming they should get FEMA grants to help rebuild chapels and other religious property, just as hospitals and other institutions are seeking scarce FEMA dollars.
Unfortunately, the Supreme Court has come a long way from protecting true government neutrality toward religion that it scrupluously guarded only a few decades ago. If the conservative justices on the Court succeed, perhaps as early as this term in the Masterpiece case, they can effectively enact a broad exemption from civil rights and other laws for businesses and others who claim religious objections, even where innocent third parties are harmed. One more decision like Trinity Lutheran would not only permit but require government funding of religious institutions when secular institutions receive it.
This dangerous one-way ratchet of always favoring religious adherents would contradict our Constitution’s fundamental protection of religious liberty and harm all Americans. Unless the Court’s moderate justices resist this push, and unless more justices like Thomas and Gorsuch can be prevented from joining the Court, it is all too likely that this danger will come to pass.