Abstract

The Supreme Court's Establishment Clause cases over the last fifty years have yielded a
set of sometimes-inconsistent decisions. The author suggests that the Supreme Court's
inability to address this issue concretely stems from the Court's disregard of religion's
sociological function in American culture. He argues that the drafters of the Constitution
understood religion's unique function in American society and that this function has not
fundamentally changed in the past 200 years. Building on these conclusions, the author
presents two sociological insights. The first is a Toquevillian three-sector model of American
society consisting of the state, the market, and civil society. Since the survival of civil society,
the author argues, is constantly threatened by the expansion of the other two sectors, one
goal of First Amendment interpretation should be to preserve the integrity of civil society.
The second is the existence of an American civil religion that forms an integral part of civil
society. Although civil religion may be characterized by values that overlap with those of
traditional theistic religions, the author concludes that civil religion embodies values that are
essential to American democracy. Government advancement of civil religion, therefore,
should not be subject to Establishment Clause scrutiny at all. The author then identifies the
characteristics of civil religion and shows how government advancement of civil religion can
be distinguished from the advancement of theological religion that should trigger
Establishment Clause scrutiny.

    

Religious liberty issues are now center stage at the U.S. Supreme Court. In just the last two
months, the Court has already made dramatic changes to its First Amendment jurisprudence, and
it is likely to go even further. By overturning longstanding precedent on these issues, the Court
has not guaranteed religious liberty for all but, instead, religious favoritism for some. This article
highlights the ideological underpinnings of those changes and gives an idea of what’s likely to
come—especially how those changes will harm the most marginalized groups.

Since the founding of this country, the Religion Clauses of the First Amendment—the
Establishment Clause and the Free Exercise Clause—have been rightly understood to jointly
demand government neutrality to religion. The Free Exercise Clause recognizes our right to
believe and practice our faith, or not, according to the dictates of conscience. And the
Establishment Clause bars the government from taking sides in religious disputes or favoring or
disfavoring anyone based on religion or belief (or lack thereof). The Establishment Clause thus
makes the Free Exercise Clause’s promise of religious freedom real for everyone, not just an
empowered few. That basic civics lesson was once widely understood, nonpartisan, and
uncontroversial.

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Since the founding of this country, the Religion Clauses have been rightly understood to jointly
demand government neutrality to religion.

RAWPIXEL
But no longer. A majority of the current Court now believes that the two clauses are inherently at
odds and that long-settled anti-establishment interests—prohibition of government funding for
religion, to name just one—get in the way of the free exercise of religion. And the justices have
made clear that, to them, free exercise is what matters. Take Carson v. Makin, where the Court
recently concluded that the Free Exercise Clause demands public funding of religious
education. Carson presented a challenge to Maine’s education-funding program. Because Maine
is so sparsely populated, and many students live in areas without their own public schools, the
state provides vouchers for those students to get the equivalent of a public education—either at a
public school somewhere else in the state or at a private school that has nonsectarian instruction.
Parents challenged the programming, arguing that they have a free exercise right to use those
state funds for religious education. And on June 21, the Court concluded for the first time that a
state is required to allow vouchers (that is, taxpayer dollars) to be used for religious education.
That’s a sharp turn from earlier cases (Zelman v. Simmons-Harris and Locke v. Davey), which
held that when it came to state funds for religious schools, neutrality was key; states could
include religious schools in broad voucher programs but were not required to fund religious
education.

The interests in denying state funds to religious education aren’t theoretical. In Carson, for
example, one of the schools at issue teaches students to reject Islam. Another requires teachers to
agree that “homosexuals and other deviants” are “perverted.” Forbidding forced taxpayer subsidy
of religious education is one of the very reasons that the Establishment Clause exists in the first
place. But by striking down Maine’s program, the Court has required Islamic taxpayers to fund
education denigrating their religion, forced LGBTQ families to pay for students to learn that
LGBTQ people are perverted, and enlisted every Maine taxpayer in funding religious ministry all
in support of a supposed free exercise right, unknown at the Founding, to use state funding for
religious education.

But it doesn’t stop there. As Justice Sotomayor wrote in dissent, this decision “continues to
dismantle the wall of separation between church and state.” Under this Court, the separation
“that the Framers fought to build” has itself become a constitutional violation. A majority of the
justices appear to believe that free exercise is so important that it must supersede all other rights
—including equal protection, due process, and the whole panoply of constitutional and statutory
protections against invidious discrimination.

It has long been settled that simply having a religious objection to a law does not constitutionally
exempt someone from that law. Under Employment Division v. Smith, for example, a law is
constitutional, even if it burdens some religious practice, as long as the law is neutral toward
religion (meaning it applies to religious and nonreligious beliefs alike). Holding otherwise
would, as Justice Antonin Scalia noted in Smith, “make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become a law unto
himself.” Such an overreading of the free exercise right could “open the prospect of
constitutionally required religious exemptions from civic obligations of almost every conceivable
kind.”

Since Smith, however, there has been a push to undermine the decision and privilege free
exercise claims. Advocates of what is labeled the “most-favored nation” theory argue that
heightened scrutiny is required any time a law includes any secular exemptions without
comparable religious ones. Because almost every law has some exemptions and could
conceivably burden some religious practice, the most-favored nation theory does exactly what
Justice Scalia cautioned in Smith: it permits each person, corporation, or employer to “become a
law unto himself.”

Despite the warnings, the Supreme Court seems sympathetic to the theory. In the 2020 term, all
eyes were on Fulton v. City of Philadelphia, in which the Court was explicitly asked to
overrule Smith. But while Fulton was pending, the Court dramatically changed free exercise law
on the so-called shadow docket (meaning the case was decided without the benefit of full
briefing or oral argument). In Tandon v. Newsom, the Court enjoined California from enforcing
COVID-19 restrictions on private gatherings—including at-home religious gatherings—and
explained that “government regulations are not neutral and generally applicable, and therefore
trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable
secular activity more favorably than religious exercise.” Never mind that the “comparable”
secular activities–hardware stores and nail salons–were entirely unlike at-home gatherings. The
result was nothing less than religious favoritism.

And although Fulton did not affirmatively overrule Smith, it significantly undermined Smith’s

holding. In Fulton, Philadelphia refused to contract with a religious foster care agency that
would not certify same-sex couples as foster care parents. The Court held that because the city’s
anti-discrimination policy allowed for some nonreligious exemptions, it was not neutral toward
religion. Therefore, under Smith, the city’s policy had to satisfy strict scrutiny—which the Court
decided the city could not do. The Court ignored that the permissible exemptions—which had
never been granted—were for the placement of children and not for the certification of parents.
While the Fulton  decision was celebrated for applying—rather than revisiting—Smith, it also
demonstrates how religious favoritism can take hold even if Smith survives. By playing fast and
loose with the definition of “comparable” treatment of religion and nonreligion, courts can
invalidate almost any law.

But religious favoritism doesn’t even end there. The Court has decided that religion is enough to
opt out of certain civil rights laws entirely. Take, for example, the Court’s decisions in Hosanna-
Tabor v. EEOC  (2012) and Our Lady of Guadalupe v. Morrissey-Berru (2020), which applied
the ministerial exception. Under that doctrine, religious organizations are not held liable for
certain types of discrimination against their ministers. When the exception applies—that is, when
someone is found to be a minister—employers need not show that religious beliefs
had anything to do with their discriminatory acts toward an employee. The victim of the
discrimination simply loses the protection of core civil rights laws like Title VII and the
Americans with Disabilities Act, among others. And despite what the name suggests, the
ministerial exception applies broadly so long as the employee plays an important role in carrying
out the employer’s religious mission. Courts have applied it to elementary school teachers, an
ESL professor, and others, including even an organist. And just this term, four justices indicated
that they would go further, allowing statements in contracts and employee handbooks to
determine whether an employee is a minister, even if those statements don’t reflect what the
employee actually did.
Even in Bostock v. Clayton County (2020)—a milestone civil rights victory that held that Title
VII protects against employment discrimination based on sexual orientation or gender identity—
the Court laid the groundwork for religious exemptions to skirt the ruling. Not only might some
employers avail themselves of the ministerial exception or certain Title VII exceptions for
religious organizations, but the Court implied that any employer might avoid Title VII’s
requirements by relying on the Religious Freedom Restoration Act—RFRA—which Justice Neil
Gorsuch called a “superstatute.” Under RFRA, the government must satisfy strict scrutiny when
its actions “substantially burden” someone’s religious exercise. The Court’s approving reference
to RFRA validated the idea that an individual’s personal religious beliefs might outweigh the
government’s interest in stopping discrimination.

The Constitution was once widely understood to guarantee religious freedom and equal
protection for everyone. In the 1968 case Newman v. Piggie Park Enterprises, for instance, the
Court described as “patently frivolous” Piggie Park’s argument that, because a restaurant
owner’s religious beliefs “compel[led] him to oppose any integration of the races,” he was
exempt from Title II of the Civil Rights Act and should be permitted to refuse service to Black
customers. The Court’s current turn toward religious exceptionalism suggests, remarkably, that
Piggie Park’s retrograde requests failed only because they came 50 years too early. We hope this
trend of religious favoritism is only a short detour and that we return to our constitutional
underpinnings.

ENTI