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The new Supreme Court doctrine against religious discrimination

Conservative justices favor religious liberty over the separation of church and state.

Former Bremerton High School assistant football coach Joe Kennedy takes a knee in front of the Supreme Court after his legal case, Kennedy v. Bremerton School District, was argued before the court on April 25 in Washington. (Win McNamee/Getty Images)
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In its last two weeks of a blockbuster term, the U.S. Supreme Court released two major First Amendment decisions dealing with religious liberty: Carson v. Makin, about whether Maine could refuse to fund religious schools, and Kennedy v. Bremerton School District, about whether a football coach could pray on the field after games. As expected, the court decided in favor of the religious claim in both cases. Together, these decisions’ legal analyses expanded religious liberty and free speech protections, while weakening the First Amendment’s establishment clause limitations which separate church and state.

Some have described the invigorated conservative majority as decidedly pro-religion. More specifically, the majority can be described as being hypervigilant against religious discrimination. Not surprisingly, this dovetails with the way religious liberty has been mobilized in the culture wars.

Religious liberty or religious discrimination?

On June 21, the court released its decision in Carson v. Makin, a case dealing with Maine’s funding of free public education. In rural areas where families had no public school options, the state provided government funds for students to attend different public schools or nonsectarian private schools. The challengers argued that excluding religious private schools violated the First Amendment’s clause protecting the free exercise of religion. Chief Justice John G. Roberts Jr. wrote for the 6-to-3 majority, split along ideological lines, in favor of the religious schools, citing a string of recent decisions, including a 2020 case arising out of Montana.

In his ruling, Roberts emphasized that Maine’s exclusion “is discrimination against religion,” which the court had ruled a clear violation of the First Amendment’s free exercise clause. He added that the First Amendment ban on the government “establishing” any religion — the other religion clause in the constitution — “do not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

The conservative majority’s emphasis was clear. Concerns over establishing religion must not result in discrimination against religious adherents.

In Kennedy v. Bremerton, a high school football coach, Joseph Kennedy, argued that he was discriminated against when the school fired him for offering on-field, postgame prayers. The Supreme Court’s decision solidified this view. Justice Neil M. Gorsuch wrote the opinion, again split on 6-to-3 ideological lines, arguing that the school was mistaken that it needed to “ferret out and suppress religious observances even as it allows comparable secular speech.” Gorsuch emphasized that the “Constitution neither mandates nor tolerates that kind of [anti-religious] discrimination.”

Perhaps more important, to protect against anti-religious discrimination, Gorsuch officially declared the end of the “Lemon test,” a three-part test to protect against the government establishment of religion that was solidified in the Warren Burger court’s 1971 decision, Lemon v. Kurtzman. The Lemon test had been on shaky ground for decades. In May, in a unanimous decision requiring Boston city hall to allow a Christian flag to be flown on its public flagpole, the conservatives’ opinions suggested they would soon overrule Lemon. In Lemon’s place, Gorsuch explained that the court would interpret the Establishment Clause by “reference to historical practices and understandings,” which downplays 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, prominent evangelical organizations urged the court to overturn Lemon. The late Justice Antonin Scalia once compared Lemon to a ghoul in a late-night horror movie, which haunts First Amendment jurisprudence and cannot be killed. Over the past decade, however, the court has come around to the conservative Christian position, minimizing Lemon and emphasizing free exercise concerns over and above establishment ones.

Supreme Court justices aren't pretending to respect each other

Treating religious liberty as protection against discrimination fits broader culture war narratives

As scholarship shows, the language of discrimination fits a broader political narrative some have promoted, arguing that religion is threatened in public life. Over the past decade, many surveys have documented a partisan gap regarding groups that face discrimination. Pew Research finds that Republicans believe American evangelical Christians face as much or more discrimination as Muslims and Jews, while Democrats do not. Large proportions of White evangelical Protestants in particular believe that Christians regularly suffer discrimination.

During the 2020 election, political scientists Paul A. Djupe and Ryan P. Burge fielded two surveys that asked whether people had heard claims circulating among some on the right that if Democrats won the election, they would threaten religious liberty in several ways, including banning the Bible and otherwise taking away Christians’ religious freedom. A substantial majority responded that they’d heard such claims, even if they didn’t believe them.

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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 often portrayed Democrats as threatening to Christians, arguing that they wanted to “take down the church.” First Liberty, the conservative Christian legal advocacy group that litigated the football coach and the Maine school cases, described pandemic restrictions as an “all-out war on faith” in 2020 news releases, arguing that they exposed the “real agenda of our opponents: to keep our churches shut down indefinitely and attack religious freedom.”

When the Supreme Court emphasizes protecting against religious discrimination, it is not only crafting legal doctrine. The court’s rulings intersect with the political culture wars, and some members have clearly promoted one side in their public commentary. Nine days after the 2020 election, Justice Samuel A. Alito Jr. delivered a speech to the Federalist Society in which he argued that the free exercise of religion was “fast becoming a disfavored right.”

In 1991, law professor Ira Lupu declared that the constitutional era in which separation of church and state “is the dominant theme appears to be over.” Thirty years later, the Supreme Court has made clear that defending the free exercise of religion is dominant, with a particular focus on protecting against discrimination toward religion. This comes at a time when some Americans perceive religion as being under threat, merging constitutional doctrine with the culture wars.

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Andrew R. Lewis (@AndrewRLewis) is an associate professor in the School of Public Affairs at the University of Cincinnati, author of “The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars” (Cambridge University Press, 2017), and co-editor in chief of the political science journal Politics & Religion.