Carole Levine May2 25, 202
One of the Constitutional concepts that I have always held most sacred is that of separation of religion and state. I think it comes from being a member of a minority faith in this nation. Having felt the sting of discrimination, I have strong feelings about keeping all faith issues out of public policies, and publicly funded entities such as schools and government. It has been disconcerting over the last few years to watch the growth in power and sway of religious thought and doctrine into our local, state, and federal government. These are not always in actual laws or policies, but often practices that, while many think of as “lovely traditions,” I find dangerously elevate one group’s religious practice over another’s. The decorating of public buildings for religious holidays, holding Jewish Seders and Hanukkah candle lightings may be lovely traditions, but leave me feeling as though we are crossing lines that will make those lines even more transparent. This can begin to dictate state practice and become a situation of one group’s religious preference over another. I, for one, am not ready to go there.
And now, in our courts, religion seems to have inserted itself into a number of key cases that have the potential to blur the line of separation. Even in cases where religion is not overtly the issue, like abortion, the role of personal religious beliefs may be a part of what influences legislative and judicial decisions.
The list of Supreme Court cases pending and already decided is long., including four cases that have been fully argued and others that were heard by this Court on the “Shadow Docket” (Emergency Petitions that do not get full hearings or full opinions or dissents from the Justices, just a swift decision, often without any specific reasoning from the Court.) Looking into these cases, both those that have been decided and those that are pending, offers a frightening perspective of where this nation seems to be moving when it comes to our often touted “separation” of religion and state.
The Constitution is clear. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In other words, our government is Constitutionally forbidden from promoting one set of religious beliefs over another, or from restricting an individual’s religious practices. That sounds fairly simple to me. It has been the platform for great religious diversity in this nation and for the maintenance of religious schools that are separate from those that are supported by public tax funding. Court cases have been brought over the years to test the flexibility of this line of “separation” and, for the most part, until this particular Supreme Court, there was always a sense that the line would hold. With the rise of modern conservative Republicanism this line has become blurred and, this session of the Court may do away with it altogether.
If we look at the four religion/state cases that the Supreme Court heard this session, some patterns emerge. Religion is personal. Given that, all four of these cases, each in its own way, drawn on very personal issues around religious beliefs and in some cases, relate to individual personal beliefs. The Court, in these cases is looking at a personal religious belief within the context of the collective beliefs. Determining which holds sway and which might cause damage to the collective is often what is under consideration. You may notice in these cases a pattern emerging. The focus on most of these cases is on an individual or on an act (in the case of the flag raising). The religious action becomes personal. This is also found in almost all of the cases that involve religious freedom issues in the Shadow Docket. These were cases of allowing congregations to meet in person during the pandemic. Or cases involving mask mandates at churches. These cases were deemed emergencies and decided quickly, without full arguments and hearings and were often sent back to lower courts that had already decided in favor of the religious party. Again, what is seen here is a prioritizing by the Court of the personal religious action over the collective impact/good. For me, this is a cause for concern.
The first case, Ramirez v. Collier, was a case of a Texas death row inmate who wished to have his pastor lay hands on him and pray out loud as he was executed. While Texas said they needed to provide the greatest security during the execution process and prevent unnecessary disruption and trauma to the victim’s family members. The Court ruled 8 to 1 (Justice Thomas dissented) in favor of Ramirez, holding that his personal religious beliefs would not compromise the State’s ability to execute him safely.
The second case involves flags. The city of Boston has a program in which it flew the flags of various organizations and programs from the city front of Boston City Hall. The dispute, Shurtleff v. Boston arose when the city refused to fly the flag of a Christian organization with a cross on it, stating it would violate the First Amendment. In this case, the Supreme Court brought back a unanimous verdict in favor of the organization. Writing for the Court, Justice Stephen Breyer explained that any messages in the flags displayed by the City were not necessarily associated with the City and so the flag-raising program could not be considered government-speech. Since the City’s refusal to include this flag was specifically based on a “religious viewpoint” it actually violated the First Amendment and discriminated against Shurtleff. And so, another line in religion and state is crossed.
The third and fourth cases involving religion and state take us into the schoolhouse. One comes from Maine and the other across the continent to Washington State;one involves the issue of public funds for religious schools and the other involves religious prayer in (or on) school grounds and by school personnel. At this writing, neither of these cases has been decided by the Supreme Court, but based on other decisions made thus far, and that religion is actually named in the Constitution, giving it status for those who claim to be “Originalist” and strictly interpret only what is written in the Constitution, that other controversial issues (like abortion or LGBTQ rights) do not have, one might predict a pro-religion outcome from this Court.
Carson v. Maken was heard by the Court on December 8, 2021. The case was fairly straightforward. The state of Maine does not operate enough secondary schools to accommodate all of the students in the state. To ensure all receive a proper secondary education each School Administrative Unit may: 1) contract with a secondary school to provide school privileges or (2) pay the tuition of a secondary school at which a particular student is accepted. In either circumstance, the secondary school must be either a public school or an “approved” private school. To be an “approved” school, a private school must be “nonsectarian in accordance with the First Amendment.” And there’s the catch. Parents sued to send their children to religiously affiliated schools and although such cases had failed twice in past years, this Court agreed to hear this case. The question to be determined by this Court which leans heavily toward plaintiffs with religious leanings, is: Does a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violate the Religion Clauses or Equal Protection Clause of the U.S. Constitution? You be the judge on this one.
The fourth case may also be a touchdown for religious practice in public spaces, particularly schools. Kennedy v. Bremerton School District concerns a football coach who, win or lose, insisted on an after game prayer at the 50 yard line. When asked to desist by the school district as they were concerned with First Amendment violations, Coach Joseph Kennedy refused and continued to invite players and others to join him, which they did. When he was dismissed from his position he sued based on First Amendment and Civil Rights violations. Lower courts found for the school district. Now the case rests with a very religiously sympathetic Supreme Court. Is Kennedy’s public prayers on school property as a school employee protected speech or is it unprotected religious behavior? Will this decision impact other forms of disputed school prayer such as graduation prayers or school board invocations.
The government is responsible for what Slate writer Dahlia Lithwick refers to as “thin” public morality. Lithwick states, “That “thin” public morality is now responsible for the daily business of keeping us healthy, educating our children, and keeping the public safe. But is that enough when juxtaposed with a person’s sincere religious beliefs? When it clashes with a good story about a lone actor attempting to live their moral and spiritual life, it is persistently set aside as unimportant—a faceless, pointless bureaucracy. Consider that the entire CDC was flipped off last week by a Florida district court judge fighting for the “liberty” interests of unmasked travelers; consider that the Supreme Court did something similar this winter over the Biden administration’s test-or-mask mandate; or that the court did much the same thing on the shadow docket when it allowed religious adherents to challenge early COVID lockdown orders.” How will these cases play out and what will their impact be?
As I write this, I find myself sighing and wishing I were writing about something else. I cut my advocacy teeth protesting having to say the Lord’s Prayer in my kindergarten class at age 5. Separation of religion and state is something that has always had meaning to me as a member of a minority religion in this country. To see that wall diminished in so many ways, has me questioning all my years of advocacy on issues and my work on the courts. But, perhaps, there will be some other 5-year-olds out there whose consciences will be raised and who will stand up for what they and their families truly believe. As these walls of separation are pulled down, hopefully others will step in to find new ways to reinforce them in order to ensure real religious freedom for everyone.
