Revisit of ‘due process’ rights led to reversal of Roe
States, lawyers and legal scholars are continuing to evaluate the…
While much of media attention on the 2021-22 Supreme Court term has focused on Dobbs v. Jackson Women’s Health Organization, which in June overturned Roe v. Wade, the court decided several cases during the year that impacted — and in some ways expanded — the jurisprudence of religious freedom.
The high court has struggled for a century or more to clearly define the limits of religious freedom and ways in which federal and state governments can intersect with religion. The result has been a collection of confusing and apparently contradicting jurisprudence.
The First Amendment to the U.S. Constitution limits government “establishment of religion” and, at the same time, protects the right of “free exercise” of religion — the Establishment Clause and the Free Exercise Clause. It also safeguards the right to freedom of speech and, by extension, freedom of expression, including religious expression. In recent decades, it has been areas in which these freedoms clash that have found their ways to the U.S. Supreme Court.
Four cases during the most recent term addressed the right of free exercise of religion and the protection against establishment of religion.
John Ramirez was convicted in Texas of a brutal 2004 murder and sentenced to death by lethal injection. After years of delays, Ramirez’s execution was finally set for September 2021, and he filed suit because the state of Texas denied his request that his longtime pastor be present in the execution chamber, pray audibly and be allowed to lay hands on Ramirez.
In the early 1990s, the Supreme Court had overturned previous rulings and decided that laws that incidentally restricted the free exercise of religion need only be “generally applicable” to be valid. Congress responded by passing the Religious Land Use and Institutionalized Persons Act of 2000, which set a higher bar for restricting the religious practices of those incarcerated. RLUIPA was similar to the Religious Freedom Restoration Act of 1993, interpreted eight years ago in Hobby Lobby v. Burwell, which held the federal government could not require companies to provide employees with certain types of birth control.
In applying the RLUIPA in Ramirez v. Collier, the court held 8-1 in March that Texas’ restrictions on religious touch and audible prayer in the execution chamber were indeed a “substantial burden” on religious exercise and were not the “least restrictive means” of advancing the government’s interest in preventing interference with or disruption of an execution.
For more than a decade, the city of Boston had a practice of allowing groups to replace the city flag on the third pole in front of city hall with their own flag, particularly when the groups were conducting ceremonies or gathering in the adjacent plaza.
The city approved the raising of about 50 unique flags for nearly 300 such gatherings, from flags of various countries to the rainbow pride flag to the flag of a local community bank.
The city had never refused a request to fly a flag until Harold Shurtleff, the director of an organization called Camp Constitution, sought to fly a blue flag bearing a white cross as part of a ceremony “to commemorate the civic and social contributions of the Christian community.” Boston approved the event but denied the request because the flag was called “a Christian flag” and allowing it to fly would violate the Constitution’s Establishment Clause.
The Supreme Court held unanimously in May that, based on Boston’s past practice, flying a third-party flag on the government’s flagpole does not constitute “government speech” and allowing others to use the flagpole made it a public forum. For that reason, denying the group’s request constituted a violation of its right to free speech. Just as the government cannot prevent religious groups from using public property for religious purposes if the property is open to others’ use, it may not exclude private speech on the flagpole based on “religious viewpoint.”
The state of Maine created a program that provides tuition for students who live in remote school districts that don’t have a secondary school or have an agreement with a nearby school district that offers secondary education. The program provided tuition that can be used at private schools but required that these schools be “nonsectarian.”
Families who wanted to use the funding to send their children to private Christian schools filed suit, arguing that the “nonsectarian” limitation discriminated against their right to religious exercise, and the Supreme Court ultimately agreed. In June, the court held 6-3 that preventing the use of otherwise generally available tuition assistance payments at religious private schools violates the Free Exercise Clause.
Joseph Kennedy, a high school football coach in Bremerton, Wash., began quietly kneeling and praying at midfield after games and eventually was joined by players, students and parents. The school district, fearing an Establishment Clause lawsuit, ordered him to stop, and when he refused, fired him.
Kennedy sued, arguing the First Amendment does not require government employees to give up their rights of free speech and religious expression.
Schools have been a major battleground for establishing the boundaries of religious freedom since the 1940s, and that accelerated 20 years later. While the court has allowed prayer to continue at city council meetings and legislative sessions, it has held school-sponsored prayers at the beginning of the school day or before a football game are violations of the Establishment Clause. At the same time, it has held that religious groups may use school facilities after hours and that districts may schedule a “moment of silence” during which students individually may pray as long as prayer is not the sole purpose of the period.
A complicating factor has been a 1971 case called Lemon v. Kurtzman. In that case, the court struck down, 8-1, a state structure that provided funds to private, sectarian schools for the secular portion of student instruction. In deciding that case, the court created a three-pronged test to evaluate compliance with the Establishment Clause. The law or government action must have a secular legislative purpose, the principal or primary effect must neither promote nor inhibit religion, and it must not foster “excessive government entanglement with religion.” The court also came to consider whether the reasonable observer would infer a government endorsement of religion.
But lower courts and the Supreme Court itself have found that Lemon Test over the past 50 years to be difficult to apply. As the majority noted in Kennedy, that test has been considered “abstract and ahistorical,” and the court explicitly repudiated it and the endorsement test offshoot.
The court in June held, 6-3, that the Establishment Clause did not bar Kennedy’s private but visible prayer on school property, despite his employment by the school district. Personal religious observance is protected by both the Free Exercise and Free Speech Clauses of the First Amendment.
KENNETH PYBUS is an associate professor and chair of journalism and mass communication at Abilene Christian University in Texas and a First Amendment lawyer. He worships with the Hillcrest Church of Christ in Abilene.
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