Forloveofgodandcountry's Blog

by Diane Rufino, October 7, 2022

“I believe in Christianity as I believe that the sun has risen – not only because I see it, but because by it, I see everything else.”   — C.S. Lewis

It is absolutely clear that religion in this country has come under an attack from the ideological progressive left. Religion, religious leaders, religious business owners, and religious organizations have been demonized, vilified, slandered, and bullied all because they dare to stand firm in their religious beliefs. Segments of established churches, such as the Methodist Church and the Catholic Church, are demanding that they ignore and even revise the religious principles they stand for and promote. They want to get rid of the “marriage is between one man and one woman” and “man shall not lie with another man” religious teachings so that the churches can fall in line with today’s social progression.  

The First amendment contains two separate protections when it comes to religion and religious exercise. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Religious Liberty is the first of our fundamental rights to be addressed in the Bill of Rights. The first clause in the First Amendment (“Congress shall make no law respecting the establishment of religion”) is known as the “Establishment Clause.” This clause makes perfectly clear that the federal government (Congress) is prohibited the government from “establishing” a state-sponsored church, which is what Great Britain did in establishing the (Anglican) Church of England.

The second clause [“Congress shall make no law prohibiting the free exercise (of one’s religion) thereof”] is known as the “Free Exercise Clause.” The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals; that is, Americans are protected from government in their free exercise of their religious beliefs. The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. 

Before we even had the Constitution and the First Amendment, religious liberty protections were already a priority in the minds of men such as Thomas Jefferson and James Madison. For example, the Virginia Statute for Religious Freedom, which was drafted by Jefferson in 1776 and accepted by the Virginia General Assembly in 1786, was one of the most important documents in early U.S. religious history. By its enactment, it ensured that all religious groups were placed on an equal footing so far as the State was concerned. The Virginia Statute marked the end of a ten-year struggle for the separation of church and state in Virginia, and it was, in fact, the driving force behind the religious clauses of the First Amendment of the U.S. Constitution, ratified in 1791. As Jefferson explained: The Virginia Statute for Religious Liberty was a first attempt to attempt to provide religious freedom to “the Jew, the Gentile, the Christian, the Mahometan, the Hindoo, and the infidel of every denomination.” To explain it in terms of historical significance, it was the first attempt in the new nation to remove the government’s influence from religious affairs.

Today, we (incorrectly) associate the phrase “Separation of Church and State” as explaining the meaning of the Establishment Clause. The question is: Where did this phrase come from? And what exactly does it mean? The phrase certainly appears in no official founding document. Leading religious experts have challenged politicians and jurists to find it

So, if the phrase “Separation of Church and State” appears in no official founding document, what is the source of that phrase?  And how did it become so closely associated with the First Amendment?  As we now know, the phrase came from a letter written by Thomas Jefferson.

On October 7, 1801, the Danbury Baptist Association of Danbury, Connecticut, sent a letter to President Thomas Jefferson expressing their concern that protection for religion had been written into the laws and constitutions. Believing strongly that freedom of religion was an inalienable right given by God, the fact that it appeared in civil documents suggested that the government viewed it as a government-granted rather than a God-given right. Apprehensive that the government might someday wrongly believe that it did have the power to regulate public religious activities, the Danbury Baptists communicated their anxiety to President Jefferson.   

      
On January 1, 1802, Jefferson responded to their letter. He understood their concerns and agreed with them that man accounted only to God and not to government for his faith and religious practice. Jefferson emphasized to the Danbury Baptists that none of man’s natural (ie, inalienable) rights, including the right to exercise one’s faith publicly, would ever place him in a situation where the government would interfere with his religious expressions. He assured them that because of the ‘wall of separation,’ they need not fear government interference with religious expressions:

“Believing with you that religion is a matter which lies solely between man and his God,… I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.”

In his letter, Jefferson made clear that the “wall of separation” was erected not to limit public religious expressions but rather to provide security against governmental interference with those expressions, whether private or public. (On numerous other occasions, Jefferson repeatedly affirmed that the sole purpose of the First Amendment was to ensure that the federal government could not interfere with public religious expressions).

Later courts occasionally cited Jefferson’s “separation” letter in their rulings. For example, in the 1878 case Reynolds v. United States, the Supreme Court quoted heavily from Jefferson’s letter, noting with approval Jefferson’s view that the federal government was not to interfere with religious expressions of values, except in a very narrow set of circumstances.

The case addressed the issue of religion and polygamy. George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, was charged with bigamy under the federal Morrill Anti-Bigamy Act after marrying a woman while still married to his previous wife. Reynolds argued that the law was unconstitutional. He reasoned that his religion required him to marry multiple women and the law therefore violated his First Amendment right to free exercise of religion. And so, he took this issue to court.

The specific question posed to the US Supreme Court is whether religious exercise or religious duty is a legitimate defense to a criminal charge. The Court, however, upheld Reynolds’s conviction and Congress’ power to prohibit polygamy. The Court held that while Congress could not outlaw a belief in the correctness of polygamy, it could outlaw the practice thereof. The majority reasoned that while marriage is a “sacred obligation,” it is nevertheless “usually regulated by law” in “most civilized nations.” The Court addressed Jefferson’s letter to the Danbury Baptists and summarized it as follows:  

“The rightful purposes of civil government are for its officers to interfere with religion only when its principles break out into overt acts against peace and good order. In this is found the true distinction between what properly belongs to the Church and what belongs to the State….. Congress was deprived of all legislative power over mere religious opinion but was left free to reach religious actions which were in violation of social duties or subversive of good order.”

Ultimately, the Court held that people cannot ignore a law and avoid prosecution due to their religious beliefs.

Since the federal government was only to inhibit religious expressions that were “subversive of good order” or “broke out into overt acts against peace and good order,” that Court (and other courts, including in Commonwealth v. Nesbit and Lindenmuller v. The People) provided examples of the types of “religious” acts into which the government did have legitimate reason to intrude – acts such as human sacrifice, concubinage, incest, polygamy, injury to children, etc. But in traditional religious practices (whether public prayer, the use of the Scriptures, etc), the government was never to interfere. This was the clearly-understood meaning of Jefferson’s “separate” letter and the manner in which it was applied for a century and a half.

However, a reversal occurred in 1947, in the case of Everson v. Board of Education.

In 1947, the US Supreme Court began to reinterpret the First Amendment by re-interpreting the phrase “Wall of Separation Between Church and State,” which is a legal fiction, in the case of Everson v. Board of Education of Ewing Township. At issue was a New Jersey law which authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds.

Justice Hugo Black, a former KKK leader, wrote the majority opinion for the Supreme Court in Everson. The majority concluded that the New Jersey statute which permitted reimbursement to the parents of Catholic children for the cost of bus transportation as was available to children attending public school (and to those who chose, rather, to attend a parochial school) was valid in light of the Establishment Clause. Justice Black wrote: “The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” In his conclusion, Black added this phrase: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

And since that 1947 opinion, the phrase “separation of church and state” no longer meant that the federal government (ie, the “state”) could not establish a federal denomination (ie, a “church”), but has been re-interpreted to mean that public religious expressions (ie, the new “church”) must be kept separate from the public square (ie, the new “state”). This change in definition has resulted in one absurd ruling after another, each one destroying our national identity bit by bit.

This is why I say that the “Wall of Separation” phrase is a legal fiction.

In 1962, the US Supreme Court began to remove religion from America’s public schools, with the case Engel v. Vitale. In that case, the New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments. The question presented by this case was an extremely narrow one – whether New York overstepped constitutional bounds when it agreed to finance a religious exercise. Does the reading of a nondenominational prayer at the start of the school day violate the Establishment Clause of the First Amendment?  

The Supreme Court held that the state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion.

In an opinion authored by Hugo L. Black, the Court held that respondent’s decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional “wall of separation between church and state,” which he so ‘eloquently’ (sarcastic) and deceitfully articulated in his Everson opinion. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent’s provision of the contested daily prayer was inconsistent with the Establishment Clause.

Justice William Douglas concurred in the judgment on the ground that the state’s financing a religious exercise violated the First Amendment. In his concurring opinion, Douglas, explained: “We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious….,” and as such violates the “wall of separation” rule.  

He continued:

“In New York, the teacher who leads in prayer is on the public payroll, and the time she takes

seems minuscule . . . Yet, for me, the principle is the same, no matter how briefly the prayer is said, for, in each of the instances given, the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a ‘captive’ audience…..   At the same time, I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public-school teacher leads. Yet once government finances a religious exercise, it inserts a divisive influence into our communities…..

The First Amendment leaves the Government in a position not of hostility to religion but of neutrality . . . The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion.”

Next came the removal of Bible reading at the start of each school day. In the case of Abington School District v. Schempp, a Pennsylvania law requiring public school teachers to read from the Bible at the beginning of each school day was challenged as being violative of the Establishment Clause of the First Amendment (and the Fourteenth Amendment, which incorporated the First Amendment on the States in the case Gitlow v. New York, in 1925). The issue presented to the Court was whether the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments. The Court consolidated this case with one involving Maryland atheists (headed by the infamous atheist and hedonist, Madalyn Murray O’Hair), who challenged a Baltimore city rule that provided for opening exercises in the public schools that consisted primarily of reading a chapter from the bible and the Lord’s Prayer. (Murray v. Curlett). When Maryland’s highest court held that in-school Bible readings did not violate the First Amendment, O’Hair appealed to the US Supreme Court. The case was then consolidated with the Abington v. Schempp case.

The Supreme Court concluded that public schools cannot sponsor Bible readings and/or recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause. In an opinion written by Justice Clark, the majority concluded that, in both cases, the laws required religious exercises and such exercises directly violated the First Amendment.

In this excerpt from the Opinion, he explains: “Petitioners (atheists) contend that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, they argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree. We think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

Furthermore, he wrote:

“The wholesome “neutrality” of government toward religion of which this Court’s cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, the two clauses may overlap…. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution…. T]here must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar, we find that reciting morning readings from the Bible and recitation of the Lord’s Prayer constitute a religious ceremony that was intended by the State to be so. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

The State contends that the program is an effort to extend its benefits to all public-school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. The short answer is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of James Madison, “it is proper to take alarm at the first experiment on our liberties” (Memorial and Remonstrance Against Religious Assessments).

It is insisted that, unless these religious exercises are permitted, a ‘religion of secularism’ is established in the schools. We agree, of course, that the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe’ (Zorach v. Clauson). We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs….

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment….”

Justice Douglas wrote, in his concurring opinion:

“The Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise that only some of the people want and that violates the sensibilities of others.

The most effective way to establish any institution is to finance it, and this truth is reflected in the appeals by church groups for public funds to finance their religious schools. Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others. But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members.

Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling. For the First Amendment does not say that some forms of establishment are allowed; it says that “no law respecting an establishment of religion” shall be made. What may not be done directly may not be done indirectly, lest the Establishment Clause become a mockery.”

It should be acknowledged that the cases before the high Court were intentionally brought by atheist and other anti-religion persons and organizations for the sole purpose of taking religion out of our public schools. Next would come the demonization of the Ten Commandments and the Golden Rule.

One of the most notorious atheist activists was Madalyn Murray O’Hair, a proud and avowed atheist and hedonist. Murray was born in Pittsburgh, Pennsylvania in 1919. Pregnant with her first child in 1945, she declared to her family that she was going outside to “challenge God to strike me and this child dead with one of those lightning bolts.” She took pleasure in the fact that she was not struck down, despite violently cursing and bating God.  This event set a precedent for numerous dramatic and attention-seeking decisions she would make later in her life, nearly all of which were facilitated by her abhorrence of religion.

It was the deeply rooted educational practice of reading the Bible in class that Murray set her sights on. She was determined to have the practice prohibited. Murray herself most clearly spelled out her beliefs and aims in a letter to her supporters: “We are Atheists. As such, we are foes of any and all religions. We want the Bible out of school because we do not accept it as being either holy or an accurate historical document. We want the Lord’s prayer out of school because we doubt the historicity of Jesus Christ and also we do not believe in the efficacy of prayer.” In 1963, she brought a case, Murray v. Curlett, challenging the policy of mandatory prayers and Bible reading in Baltimore public schools. The case was consolidated with the Abington case for hearing by the Supreme Court.

Murray publicized her victory as a triumph against the oppressive hegemony of the church in Christian society. Unsurprisingly, she achieved celebrity status, though much of the attention was violently antagonistic. Life Magazine would later describe Murray as “The Most Hated Woman in America,” a title which she relished.

It is perhaps a shame that she is remembered most due to the nature of her death. In August 1977, Murray, her son and her granddaughter all disappeared from their home in Austin, Texas. It would be weeks before the police discovered their brutally deformed remains in a nearby ranch. She worked hard to make sure we ushered in an era of hostility to religion. She was a vile woman who met a grisly end. She will continue to be remembered as the “Most Hated Woman in America.”

The Supreme Court remained on course, validating the hostility to religion in public schools. For example, in the 1990 case of Stone v. Graham, the Supreme Court was asked to address a challenge by Sydell Stone and a number of other parents who claimed that a Kentucky state law that required the posting of a copy of the Ten Commandments in each public-school classroom was unconstitutional. They filed a claim against James Graham, the superintendent of public schools in Kentucky.

The question brought before the Court was whether the Kentucky statute violated the Establishment Clause of the First Amendment? The Supreme Court ruled that because of the new interpretation of “separation of church and state,” it was unconstitutional for a student at school to continue, even voluntarily, to see a copy of the Ten Commandments. The Court explained: “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the school children to read, meditate upon.”

With the Reynolds opinion,the Supreme Court reversed more than two centuries of precedent (including its own previous rulings), ordering that the Bible and its teachings are no longer to be permitted in public schools. Why?  The Court explained: “If portions of the New Testament were read without explanation, they could be and…. had been psychologically harmful to the child (student).”

According to the Court, if students, even voluntarily, were to look at a copy of the Ten Commandments, they might adopt and even obey teachings such as “do not steal” and “do not kill.” That would be unconstitutional. Horrors!! This bizarre and unreasonable logic is reflective of far too many of the Court’s rulings on religion and religious liberty since 1962, with the Engel v. Vitale decision, and then 1963, with the Abington v. Schempp decision, as explained above.

What an amazing pronouncement from the Supreme Court – the Scriptures can cause psychological damage. Exposing students to Biblical teachings, such as the Golden Rule, the Beatitudes, and the Good Samaritan, can cause lasting brain damage! Who could imagine that the highest court in the land, tasked with interpreting the US Constitution, as originally written and understood, and as adopted and ratified by the States, would so recklessly and erroneously transform our American public school system.

But the Supreme Court seems poised to make things right again. Take, for example, this year’s case, Kennedy v. Bremerton School District. Joseph Kennedy, a high school football coach, engaged in prayer with a number of students during and after school games. He especially prayed in gratitude at the 50-yard line after each game his team won. His employer, the Bremerton School District, asked that he discontinue the practice in order to protect the school from a lawsuit based on violation of the Establishment Clause, but coach Kennedy refused and instead rallied local and national television, print media, and social media to support him.

Kennedy sued the school district for violating his rights under the First Amendment and Title VII of the Civil Rights Act of 1964. The district court held that because the school district suspended him solely because of the risk of constitutional liability associated with his religious conduct, its actions were justified. Kennedy appealed, but the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the lower court. Kennedy then appealed his case to the Supreme Court.

The issue presented to the Court was whether a public-school employee’s prayer during school sports activities constitutes protected speech, and if so, can the public-school employer prohibit it to avoid violating the Establishment Clause?

Writing for the majority, Justice Neil Gorsuch explained that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal and the Constitution neither mandates nor permits the government to suppress such religious expression.

In fact, the Court “abandoned” the “tests” used to analyze First Amendment religious liberty cases and replaced them instead with an analysis that considers “historical practices and understandings.” Applying the new test, the Court concluded that there is no conflict between the constitutional commands of the First Amendment presented by coach Kennedy’s actions.

Next, let’s look at how the Supreme Court addressed claims of First Amendment violations in the business sector. In 1990, the Court began to dismember and weaken the “Free Exercise Clause.” In other words, it weakened the right of Americans to freely exercise their religious beliefs with the case of Employment Division v. Smith.

In the Smith case, two counselors for a private drug rehabilitation organization ingested peyote — a powerful hallucinogen — as part of their religious ceremonies as members of the Native American Church. Consequently,  the men were fired. The counselors filed a claim for unemployment compensation but the government denied them benefits because the reason given for their dismissal was “work-related misconduct.” The men appealed the denial of benefits, arguing that they were denied because of their culture and their religion; they claimed the denial was a violation of their First Amendment right to the free exercise of religion.

The question presented to the Court was whether a state can deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?  And the Court concluded that it certainly can. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

While it may seem that the Smith decision is a good one, it actually can be taken very broadly, meaning that the government could burden religious exercise if it did so with a law that was generally applicable (doesn’t target any one group) and did not specifically target religion. In other words, Smith suggests that officials may burden the exercise of one’s faith as long as that wasn’t the point or intent of the law and the law applies equally to everyone.

And just this year, the Supreme Court was asked to correct course in its latest religious liberty case, Fulton v. City of Philadelphia. In Fulton, the Court examined whether the city of Philadelphia could force Catholic Social Services (CSS), which had provided foster care services to city children for more than a century, to violate its religious beliefs about marriage in order to continue its ministry of service. This is a case of unconstitutional government abuse and coercion.

In March 2018, the City of Philadelphia barred Catholic Social Services from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the city of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.

In a majority opinion written by Chief Justice John Roberts, the Court held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. All nine justices agreed on that conclusion. Thankfully, the decision of the Court now means that the government cannot prioritize secular interests over religious ones when granting policy exemption. But that’s about as far as the case went. Fulton gave the Supreme Court an excellent opportunity to overturn Smith and restore the longstanding founding principle that the government cannot prohibit or burden the free exercise of religion absent an extremely compelling reason. Unfortunately, a majority of the justices stopped short of making that ultimate decision.

Instead of overturning the Smith opinion (sadly, keeping it in place), the Supreme Court should have followed Justice Samuel Alito’s 77-page concurring opinion in Fulton. As he explained in that concurrence, the Court should abandon Smith because its toleration for any rule that categorically prohibits religious activity, so long as it doesn’t target religion specifically, is fundamentally at odds with the text, intent, and interpretation of the First Amendment. Instead, as Alliance Defending Freedom and NC Family believes, the Court should recognize that the Free Exercise Clause protects the rights of Americans to freely practice their religion and to live according to their faith. If the government imposes a law that burdens free exercise, it needs to have an interest of the highest order and it needs to be as least burdensome on religious liberty as possible.

Hopefully, the Court will take up that question sometime soon.

Luckily, Smith was overturned legislatively when Congress passed the Religious Freedom Restoration Act (RFRA), which was introduced by then-Congressman Chuck Schumer and Senator Ted Kennedy (imagine that!!) and signed into law in 1993 by President Bill Clinton. RFRA restored, by statute, the same protections for religious liberty guaranteed by the Constitution and Bill of Rights prior to Employment Division v. Smith. According to RFRA, the federal government cannot burden a person’s exercise of religion unless it has a compelling interest to do so (meaning, an interest of the highest order) and places as little a burden on the person’s religious rights as possible. Twenty-three states followed suit by adding RFRA to their own state laws so that in those states, there is protection against federal, state, and local government attempts to burden religious exercise. North Carolina was not one of those states.

Over the past thirty years, RFRA has protected Americans in their free exercise of religion from government abuse and overreach. But this once-bipartisan effort to protect religious freedom has become a stumbling block for the application of progressive far-left policies. This, perhaps, explains why Congressional Democrats have been pushing the “Equality Act,” which clearly threatens to cancel much of RFRA’s protections. The Religious Freedom Restoration Act would force acceptance of the new progressive sexual orientation and gender identity ideology while explicitly removing protections for people of faith that the Act provided.

The Equality Act, which passed the US House on February 25, 2021, prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

It also expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services. And it prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity. Finally, the bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

Proponents of the Equality Act continue in their effort to push it through the US Senate (it was placed on the Senate calendar in early 2021 but has not yet come up for a vote). If it passes, God forbid, religious organizations, including schools, hospitals, soup kitchens, homeless shelters, and even churches, could face lawsuits and potential liability just for adhering to their teachings on marriage and sexuality, teachings that the Supreme Court itself said were based on “decent and honorable religious or philosophical premises.”

Sadly, the federal Equality Act is not the only piece of legislation being proposed by the liberal left in Congress to significantly weaken the Religious Freedom Restoration Act.

Religious liberty today relies primarily on the First Amendment’s Free Exercise (of Religion) Clause and on the Religious Freedom Restoration Act (RFRA). But those who grew up in the 1940’s thru the 1960’s probably can best attest to the fact that these protections have been chiseled away and can attest to the significant changes in society and in morality as a result of these erosions of our basic rights.

Unfortunately, the Free Exercise Clause no longer fully protects religious practices from government-imposed burdens. And liberal politicians have threatened to gut part of RFRA’s vital protections in order that they can usher in further social change.

NC Family explains the challenges that Religious Liberty faces today (and a good majority of them have been defended by the Alliance Defending Freedom (ADF):

• Creative professionals are forced to celebrate and even participate in events that violate their deepest beliefs about marriage. For example, we all remember Jack Phillips, the Colorado cake artist and owner of the Masterpiece Cakeshop, who politely declined to design a cake celebrating the marriage of a same-sex male couple. He serves everyone in his shop, but as a cake “designer” and artist, he, in good conscience, cannot and design and create a cake expressing any message that goes against his deeply-held religious beliefs.  He is famous for winning his case against the Colorado Civil Rights Commission for its outright hostility and discrimination of him because of his Christian beliefs, is once again being sued for declining to design a special cake for a transgender individual. Leftists are determined to ruin him, his reputation, put him into bankruptcy, and destroy his bakeshop. And then there is Barronelle Stutzman, a floral design artist in Washington state, who has suffered eight years of litigation and could very well lose her florist business and life savings because she politely declined, based on her religion convictions, to participate in and design custom floral arrangements celebrating the same-sex wedding ceremony of a customer  and friend she had served well for nearly ten years.
• COVID policies treated houses of worship more harshly than secular businesses. For example, Calvary Church Dayton Valley, as well as thousands of other churches were treated more severely than many secular gatherings by many of the states’ COVID-19 executive orders.
• Students and employees are punished for exercising their religious values and for sharing their religious views.  (1) Former Atlanta Fire Chief Kevin Cochran, a highly-decorated fireman, was suspended and fired after leftist activists who didn’t agree with his views on traditional marriage complained about a men’s devotional book he had written on the topic, on his own personal time.  (2) Jack Denton, the president of the Florida State University Student Senate, was harassed and removed from his position for sharing his personal religious beliefs in private text conversations with other students.
• Nonprofit groups are excluded from publicly-available benefits because they are religious (offends the “Wall of Separation of Church and State”). For example, a pre-school operated by Trinity Lutheran Church of Columbia was denied a grant by the state of Missouri to provide materials for a safe playground solely because the pre-school was run by a church. (The school filed a lawsuit and won!) And in Montana, private schools were denied funds when a Montana court tried to shut down the State’s tuition tax credit program because parents, God forbid, might choose religious schools
• Religious organizations are discriminated against by the government for having policies that align with their religious beliefs. For example, adoption and foster care agencies, New Hope Family Services, and Catholic Charities West Michigan face closure for the sole reason that their faith-based policies prioritizing the placement of children in homes with a married mother and father.

[Reference:  “Religious Liberty: First or Fading Freedom?”, by Greg Chafuen, NC Family]

There is some good news, however. The US Supreme Court has vindicated the rights of religious American citizens in a series of landmark decisions over the last five years. The Alliance Defending Freedom, a non-profit legal group that defends religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family (which won the case for Jack Phillips and Masterpiece Cakeshop), has won 13 significant victories at the Supreme Court in the past ten years and many more victories to protect and preserve religious liberty in lower courts all around the country.

Trinity Lutheran Church v. Comer (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) are just two of the “landmark” Supreme Court opinions.

Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Trinity appealed to the US Supreme Court.

The question presented to the Court asked whether the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment’s Equal Protection Clause.  The Supreme Court agreed and found in favor of Trinity. The opinion explained that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.

The Masterpiece Cakeshop case is one that highlights extreme and outright hostility to religion. The LGBTQ community has demanded “tolerance and inclusion” for years, urging Christians to accept them and their lifestyle. And for the most part, they have. Yet, the LGBTQ community, at least in this case, showed an outright hostility and an intolerance to Jack Phillips’ religious beliefs.

The Masterpiece Cakeshop, and in particular, its owner and cake artist, Jack Phillips, was targeted with particular enthusiasm and determination by the progressive left. In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that Phillips design and create a cake for their wedding. (Note that it was against the law in Colorado for Craig and Mullins to marry and so they went to Massachusetts for the ceremony). Phillips declined, in a very polite way to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his deeply-held religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. He offered them one of the other cakes that were made in the shop, but they were not interested.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division (CCRD), alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), enacted in 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA. The Alliance Defending Freedom defense team, agreeing to take the case, argued that the CCRD seemed determined to go after him for his Christian values when the Colorado Anti-Discrimination Act recognized exceptions for several individuals and organizations. These exceptions were free to decline to serve clients whose message offended them.

The Administrative Law Judge found in favor of Craig and Mullins and then the Colorado Court of Appeals affirmed the ruling. Phillips appealed the case to the US Supreme Court.

The issue presented to the Court was this: Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely-held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? The Supreme Court reversed the ruling, in a 7-2 decision, holding that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. In the opinion for the majority, Justice Anthony Kennedy explained that that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips’ perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs. The ultimate decision of the Court failed to answer the fundamental issue – Does a state law that compels a cake maker to design a cake that violates his sincerely-held religious beliefs violate his First Amendment religious right to free exercise? The Court found in Jack Phillips’ favor on the issue of the Colorado Civil Rights Commission’s animus in going after him and Masterpiece on account of his religious beliefs.

There are many more cases involving threats to religious liberty in the courts now and every indication suggests that these cases will proliferate as officials try to keep religious people, churches, and organizations from freely living out their faith.

Evil does not come at us dressed up with a sign that says “I am evil.” Evil comes at us seductively, in an appearance that appears freakish or satanic, dressed in provocative outfits, spouting half-truths. It sounds good and makes sense — until you peel off the veneer and expose it for what it is. The data shows how our society has declined, rapidly, in the wake of the Court’s decisions to remove religion from our schools and from the public arena.

In a famous 1791 educational policy paper, Dr. Benjamin Rush offered numerous reasons by the Bible should never be taken out of American schools. He even warned: “In contemplating the political institutions of the United States, if we remove the Bible from schools, I lament that we waste so much time and money in punishing crimes and take so little pains to prevent them.”

Rush knew that if religious teachings were excluded from education, widespread misbehavior would result, and the increase in crime would become a national problem. Yet today, the First Amendment now prohibits what it once protected – the inclusion of religious principles in public education.

Noah Webster provides additional corroboration of the Founders’ views on this subject. Webster today is primarily known only as an educator (his impact on education was so profound that he has been titled the “Schoolmaster to America”), yet he was also a Founding Father, serving as a soldier during the Revolutionary War and a legislator and judge afterwards. He was one of the first Founders to call for the Constitutional Convention (in Philadelphia, in 1787) and was personally responsible for specific wording in the Constitution. In a textbook he authored for public schools, Webster informed students: “All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from their despising or neglecting the precepts contained in the Bible.”

Very simply put, the Founders understood the numerous societal benefits produced by Biblical precepts and values and had no intention of expunging those principles from the public square. They even believed that American government would not function properly if separated from religious principles. As John Adams explained: “We have no government armed with power capable of contending with human passions unbridled by morality and religion…. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The Founding Fathers had specifically forewarned of the adverse effects of excluding religious influences from the public arena. Recall that Declaration of Independence signer Benjamin Rush, Bill of Rights’ signer John Adams, and Speaker of the House Robert Winthrop had specifically warned that if the public teaching of the Bible were restricted, crime and violent behavior would escalate. It is therefore not surprising that there have been measurable societal changes in the wake of the Court’s rulings.

For example, following the Court’s 1962-1963 decisions to exclude basic religious teachings from students, violent crime increased 700 percent, with metal detectors and uniformed police officers becoming a normal part of the student educational experience. In fact, crime so exploded among junior high students that the federal government began separate tracking of murders, assaults, and rapes committed by students ages 10-14 (significantly, none of these categories of statistics existed before the Court’s decisions). That is, these crimes occurred so infrequently that separate monitoring of these problems was unnecessary. Yet, despite these alarming trends and burgeoning increases in violent crime among students, they still cannot be permitted to see words such as “do not steal” or “do not kill,” or even teachings such as the Golden Rule or the Good Samaritan because God forbid, they just might obey those teachings. That would be unconstitutional and it also might cause them psychological harm.

The senselessness of this public-school policy became apparent to Colorado’s State Board of Education following the frightful school shootings at Columbine. After serious introspection in the wake of that incomprehensible tragedy, the Board issued a letter openly acknowledging:

       “As we seek the why behind this infamous event, we must find answers beyond the easy and obvious. How weapons become used for outlaw purposes is assuredly a relevant issue, yet our society’s real problem is how human behavior sinks to utter and depraved indifference to the sanctity of life. As our country promotes academic literacy, we must promote moral literacy as well…… Our tragedy is but the latest, albeit the most terrifying and costly, of a steadily escalating series of schoolhouse horrors that have swept across the nation. The senseless brutality of these calamities clearly reveals that a dangerous subculture of amoral violence has taken hold among many of our youth….  We must remember, respect, and unashamedly take pride in the fact that our schools, like our country, found their origin and draw their strength from the faith-based morality that is at the heart of our national character. Today our schools have become so fearful of affirming one religion or one value over another that they have banished them all. In doing so, they have abdicated their historic role in the moral formation of youth and thereby alienated themselves from our people’s deep spiritual sensibilities. To leave this disconnection between society and its schools unaddressed is an open invitation to further divisiveness and decline. For the sake of our children, who are so dependent upon a consistent and unified message from the adult world, we must solve these dilemmas….”

The liberal Left has a real problem…. a religion problem. The lack of religion on the Left, and its feverish push to demonize religion in general means that the Left approaches moral issues differently than conservatives. The liberal Left approaches such issues as abortion, gay marriage, gender fluidity, transgenderism, the sexualization of children, public prayer, the Ten Commandments, Christian symbols, etc without respect, without deference, and with total hostility. The Left cannot achieve their progressive agenda and their social change as long as Americans can still “cling to their religion.”

Luckily, defenders of religious liberty continue to stand and fight for their rights under the First Amendment.

I dare to think what would happen if God were to send down his Ten Commandments today. I believe that there would be a great condescending laughter from the left. And what if Christ were sent to us today. I’m absolutely sure he would be labeled a racist, a supremist, a xenophobe, a bigot, and a misogynist. Would his teachings be accepted? Would he be able to start a church today? 

References:

Greg Chafuen, “Religious Liberty: First or Fading Freedom,” NCFamily.org, Fall 2021.

David Barton, Separation of Church and State: What the Founders Meant, Wallbuilders, Library of Congress (2007).

Bill McCormick, SJ, “Why Does the Left Have a Religion Problem?” The Jesuit Post, April 25, 2017.  Referenced at:  https://thejesuitpost.org/2017/04/why-does-the-left-have-a-religion-problem/

Reynolds v. United States, 98 U.S. 145 (1878)  –  https://www.oyez.org/cases/1850-1900/98us145

Everson v. Board of Education of Ewing Township, 330 S.Ct. 1 (1947) –  https://law.justia.com/cases/rhode-island/supreme-court/1961/176-a-2d-73-0.html

Engel v. Vitale, 370 S.Ct. 421 (1962) –  https://www.law.cornell.edu/supremecourt/text/370/421

Abington School District v. Schempp, 374 S.Ct. 203 (1963) –  https://supreme.justia.com/cases/federal/us/374/203/

James Rogers, “The Most Hated Woman in America,” US History Scene.  Referenced at:  https://ushistoryscene.com/article/madalyn-murray-ohair/

Kennedy v. Bremerton School District, 597 U.S. ___ (2022) –  https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

Amy Howe, “Justices Side With High School Football Coach Who Prayed on the Field With Students,” Scotusblog, June 27, 2022. Referenced at:  https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/

Employment Division v. Smith, 494 S.Ct. 872 (1990) –  https://supreme.justia.com/cases/federal/us/494/872/

Fulton v. City of Philadelphia, 593 S.Ct ____ (2021) –  https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) – https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 S.Ct ____ (2018) – https://supreme.justia.com/cases/federal/us/584/16-111/#tab-opinion-3910082

Engel v. Vitale, 370 S.Ct. 421 (1962), oyez –  https://www.oyez.org/cases/1961/468

Abington School District v. Schempp, 374 S.Ct. 203 (1963), oyez –  https://www.oyez.org/cases/1962/142

Kennedy v. Bremerton School District, 597 U.S. ___ (2022), oyez – https://www.oyez.org/cases/2021/21-418

Employment Division v. Smith, 494 S.Ct. 872 (1990), oyez –  https://www.oyez.org/cases/1989/88-1213

Fulton v. City of Philadelphia, 593 S.Ct ____ (2021), oyez  –  https://www.oyez.org/cases/2020/19-123

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), oyez – https://www.oyez.org/cases/2016/15-577

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 S.Ct ____ (2018)  – https://www.oyez.org/cases/2017/16-111

APPENDIX

A.  ENGEL v. VITALE

FACTS:  The New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments.

QUESTION PRESENTED:  “The question presented by this case was an extremely narrow one – whether New

York oversteps its constitutional bounds when it finances a religious exercise. Does the reading of a nondenominational prayer at the start of the school day violate the “Establishment of Religion” clause of the First Amendment?

COURT OPINION:  The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion.

In an opinion authored by Hugo L. Black, the Court held that respondent’s decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional wall of separation between church and state. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent’s provision of the contested daily prayer was inconsistent with the Establishment Clause.

Justice Douglas concurred in the judgment on the ground that the state’s financing a religious exercise violated the First Amendment.

Justice Stewart dissented, arguing that no “official religion” was established by permitting those who want to say a prayer to say it.

The following are excerpts of the concurring opinion written by Justice William O.

Douglas:

“Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer and penalize anyone who would not utter it. This, however, is not that case, for there is no element of compulsion or coercion in New York’s regulation . . . The [school district] adopted a regulation which provides that ‘Neither teachers nor any school authority shall comment on participation or non-participation . . . nor suggest or request that any posture or language be used or dress be worn or be not used or not work.’ Provision is also made for

excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said . . . As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official. In short, the only one who need utter the prayer is the teacher; and no teacher is complaining of it. Students can stand mute or even leave the classroom, if they desire.”

“In New York, the teacher who leads in prayer is on the public payroll, and the time she takes seems minuscule. Yet, for me, the principle is the same, no matter how briefly the prayer is said, for, in each of the instances given, the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a ‘captive’ audience.”

“At the same time, I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise, it inserts a divisive influence into our communities.”

“Under our Bill of Rights free play is given for making religion an active force in our lives. But ‘if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government.’ [citing another First Amendment case, McGowan v. Maryland]”

“The First Amendment leaves the Government in a position not of hostility to religion but of neutrality . . . The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion

B.  ABINGTON SCHOOL DISTRICT v. SCHEMPP

FACTS:  Under Pennsylvania law, public schools were required to read from the bible at the opening of each school day. The school district sought to enjoin enforcement of the statute. The district court ruled that the statute violated the First Amendment, even after the statute had been amended to permit a student to excuse himself.

The Court consolidated this case with one involving Maryland atheists who challenged a city rule that provided for opening exercises in the public schools that consisted primarily of reading a chapter from the bible and the Lord’s Prayer. The state’s highest court held the exercise did not violate the First Amendment. The religious character of the exercise was admitted by the state.

QUESTION PRESENTED:  Did the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments?

COURT OPINION:  Public schools cannot sponsor Bible readings and recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause.

In an opinion authored by Justice Clark, the majority concluded that, in both cases, the laws required religious exercises and such exercises directly violated the First Amendment. The Court affirmed the Pennsylvania decision, and reversed and remanded the Maryland decision because the mandatory reading from the bible before school each day was found to be unconstitutional.

Justice Stewart dissented, expressing the view that on the records it could not be said that the Establishment Clause had necessarily been violated. He would remand both cases for further hearings.

The following are excerpts of the concurring opinion written by Justice Clark (joined by Chief Justice Earl Warren and Justices Black, Douglas, White, Harlan, Brennan, and Goldberg):

. . . The wholesome “neutrality” [of government toward religion] of which this Court’s cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus . . . the two clauses may overlap. . . . The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. . . . [T]here must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar, we find that . . . such an opening exercise [readings from the Bible and recitation of the Lord’s Prayer] is a religious ceremony and was intended by the State to be so. . . . Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

. . . [T]he State contends . . . that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. . . . The short answer . . . is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission . . . permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of [James] Madison, “it is proper to take alarm at the first experiment on our liberties” (Memorial and Remonstrance Against Religious Assessments).

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe” (Zorach v. Clauson). We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. . . .

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment. . . ..

Justice DOUGLAS, concurring.

. . . [T]he Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise that only some of the people want and that violates the sensibilities of others.

The most effective way to establish any institution is to finance it, and this truth is reflected in the appeals by church groups for public funds to finance their religious schools. Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others. But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members.

Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling. For the First Amendment does not say that some forms of establishment are allowed; it says that “no law respecting an establishment of religion” shall be made. What may not be done directly may not be done indirectly, lest the Establishment Clause become a mockery.

History of Religion in Schools (excerpt from the Supreme Court opinion in Abington):

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549,5 set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.6 The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time.7 Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs.8 Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, handship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Out Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say— that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is ‘nondenominational’ and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. 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. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. 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 history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support for government to spread its faith. 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. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind—a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding ‘unlawful (religious) meetings… to the great disturbance and distraction of the good subjects of this kingdom…” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, or course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that ‘More things are wrought by prayer than this world dreams of.’ It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment: “’It is proper to take alarm at the first experiment on our liberties.”

C.  MASTERPIECE CAKESHOP v. COLORADO CIVIL RIGHTS COMMISSION

FACTS:  In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA.

The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission’s ruling.

ISSUE BEFORE THE COURT:  Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?

COURT OPINION:  The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips’ perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs.

The Court also explained that in 2012, the year that Phillips refused his services to Craig and Mullins, the law in Colorado and across the country with regard to same sex marriage was much more unsettled than it became after United States v. Windsor, 570 US 744 (2013) and Obergefell v. Hodges, 576 US ___ (2015). At the time, the State Civil Rights Division had also concluded in at least three other cases that bakers had acted lawfully in declining to make cakes that included messages they disagreed with, specifically messages demeaning gay persons. Thus it was not unreasonable for Phillips to believe that he was acting lawfully at the time, and his claims before the Commission were entitled to neutral treatment.

However, the Court stated that Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. The Court explained that commissioners’ comments disparaging Phillips’ beliefs and characterizing them as rhetorical were inappropriate, though these comments were not mentioned or disavowed in subsequent legal proceedings. The Court concluded that these comments cast doubt on the fairness of the Commission’s consideration of Phillips’ claims. The Court also pointed out that disparities between Phillips’ case and those of other bakers with objections to making cakes with anti-gay messages, and who were victorious before the Commission, further reflected hostility toward the religious basis for Phillips’ position.

The Court concluded that the Commission’s actions violated the State’s duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips’ religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

Justice Ginsburg authored a dissenting opinion, in which she was joined by Justice Sotomayor, stating that neither the Commission’s comments regarding Phillips’ religious views nor its alleged disparate treatment of bakers objecting to making cakes with anti-gay messages justified ruling in favor of Phillips.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips’ religious views, but declined to assign any significance to the Commission’s treatment of bakers who refused to create cakes with anti-gay messages because she believed that this did not violate the Colorado law at issue in Phillips’ case.

Justice Gorsuch also filed a concurring opinion, joined by Justice Alito, in which he argued that the cases of Phillips and the bakers who objected to using anti-gay messages in their baking were quite similar, and the Commission acted inappropriately in treating them differently.

Justice Thomas filed an opinion concurring in part and concurring in the judgment, and was joined by Justice Gorsuch. Thomas argued that an order requiring Phillips to bake a wedding cake for a same-sex couple would violate his First Amendment rights.

D.  FULTON v. CITY OF PHILADELPHIA (2021)

FACTS:  In March 2018, the City of Philadelphia barred Catholic Social Services (CSS) from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the City of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children.

The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.

QUESTIONS PRESENTED:  (1) To succeed on their free exercise claim, must plaintiffs prove that the government would allow the same conduct by someone who held different religious views, or only provide sufficient evidence that a law is not neutral and generally applicable?  (2) Should the Court revisit its decision in Employment Division v. Smith?  (3) Does the government violate the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

COURT OPINION:  The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Chief Justice John Roberts authored the majority opinion of the Court.

Philadelphia’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents, in violation of its stated religious beliefs. Although the Court held in Employment Division v. Smith that neutral, generally applicable laws may incidentally burden religion, the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner. Additionally, CSS’s actions do not fall within public accommodations laws because certification as a foster parent is not “made available to the public” in the usual sense of the phrase. Thus, the non-discrimination requirement is subject to strict scrutiny, which requires that the government show the law is necessary to achieve a compelling government interest.

The Court pointed out that the question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. The Court concluded that it did not.

Justice Amy Coney Barrett wrote a separate concurring opinion in which Justice Brett Kavanaugh joined and in which Justice Stephen Breyer joined as to all but the first paragraph. Justice Barrett acknowledged strong arguments for overruling Smith but agreed with the majority that the facts of the case did not trigger Smith.

Justice Samuel Alito authored an opinion concurring in the judgment, in which Justices Clarence Thomas and Neil Gorsuch joined. Justice Alito would overrule Smith, replacing it with a rule that any law that burdens religious exercise must be subject to strict scrutiny.

Justice Gorsuch authored an opinion concurring in the judgment, in which Justices Thomas and Alito joined, criticizing the majority’s circumvention of Smith.

E.  TRINITY LUTHERAN CHURCH OF COLUMBIA v. COMER

FACTS:  Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal and the denial of the motions to reconsider and amend the complaint.

ISSUE BEFORE THE COURT:

Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment’s Equal Protection Clause?

COURT OPINION:  The exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion. Chief Justice John G. Roberts, Jr. delivered the opinion of the 7-2 majority. The Court held that the Free Exercise Clause of the First Amendment protected the freedom to practice religion and subjects laws that burden religious practice to strict scrutiny. First Amendment precedent had established that laws that deny an otherwise generally available benefit because of religious status are unconstitutional, though laws that are neutral and generally applicable may be upheld even if they hamper religion. The distinction was whether the law in question discriminates against some or all religious beliefs. In this case, the Missouri Department of Natural Resources’ policy of denying religious organizations from its Playground Scrap Tire Surface Material Grants violated the First Amendment’s Free Exercise Clause because it discriminated against otherwise eligible organizations based solely on their religious character. The law did not need to prevent the religious organization from practicing its religious; it was sufficient that the law denied a religious organization the same opportunity to compete for a benefit that is otherwise available to all secular organizations. Because the state’s interest in using this policy was simply to draw a wide berth around religious establishment concerns, it was not a sufficiently compelling interest.

In his opinion concurring in part, Justice Clarence Thomas wrote that the Free Exercise Clause of the First Amendment clearly prohibited laws that facially discriminate against religion. To the extent that precedent suggested that a state may “disfavor” religion by placing minor burdens on religion in order to avoid state entanglement with religion, that precedent should be construed narrowly and did not apply in this case. Justice Neil Gorsuch joined in the opinion concurring in part. Justice Gorsuch wrote a separate opinion concurring in part in which he argued that the majority opinion’s suggested distinction between laws that discriminate based on religious status and those that do so based on religious use was untenable and unsupported by the Free Exercise Clause. Additionally, the majority opinion’s footnote that limited the opinion to addressing “express discrimination based on religious identity with respect to playground resurfacing” risked making the opinion too case-specific and not based on general principles. Justice Thomas joined in the opinion concurring in part. In his separate opinion concurring in the judgment, Justice Stephen G. Breyer wrote that the First Amendment was clearly not meant to prevent religious organizations from accessing government-provided benefits such as police and fire services. The benefit here was for the health and safety of children and therefore was in the same class of government-provided services that religious organizations should be able to access.

Justice Sonia Sotomayor wrote a dissent in which she argued that this case raised serious Establishment Clause concerns. The majority opinion required a state to directly fund a religious organization in a manner that assisted the spread of its religious message and views. This was precisely the sort of direct connection between church and state that the Establishment Clause was intended to prevent, as shown by extensive history of state disestablishment. Therefore, a prophylactic rule to prevent state funding of religious organizations was permissible, and many states had one. The majority opinion erroneously called this decision discriminatory when it was actually a legitimate choice for states to make to avoid entanglement with religion. Even under the Free Exercise Clause, the doctrine allowed states to make exceptions to generally applicable laws based on an organization’s status as religious. Justice Ruth Bader Ginsburg joined in the dissent.