Establishment Clause Jurisprudence: From Sour to Sweet
A New Era for Religious Liberty in America
A casual observer could be forgiven for thinking that times have never been worse for religious liberty in America. Over the last few years, headlines have blared alarmist rhetoric such as “Religious Liberty Under Threat, at Home and Abroad” or “Freedom of religion is as threatened today as it was in 1791.” Anyone who has donated a dollar to a conservative cause is likely to have received a flood of fundraising emails suggesting that religious freedom will disappear if they do not donate to one organization or another.
It is easy to understand why someone may think religious liberty is headed in the wrong direction without doing further research. Fortunately, there is much more to the story. While there is still improvement to be made, and it remains worthwhile to support legitimate religious liberty organizations, we are closer to entering a golden age of religious liberty law than we are to seeing that right extinguished. Establishment Clause jurisprudence is a worthy case study.
A Turning Point: From Lemon to Bremerton
One bad apple can spoil the whole bunch, and a sour decision on Lemon v. Kurtzman spoiled establishment clause cases for half a century, until Kennedy v. Bremerton brought a fair return to Establishment Clause jurisprudence.
In Lemon v. Kurtzman, the Supreme Court held that issuing financial relief to religious schools constituted an impermissible “establishment” of religion.
The Legacy of Lemon
For the next 50 years, the Lemon test was the law of the land. Under that test, a law must:
- Have a secular purpose
- Not advance nor inhibit religion
- Not cause excessive entanglement of government and religion
A corollary to this rule was that any action which seemed to “endorse” religion was also unconstitutional. Lemon was so ambiguous that some government entities were deterred from offering any benefits — including those available to every other citizen — to religious people. Lemon also empowered anti-religious zealots to threaten or even sue any government that so much as allowed a Rabbi to light a Menorah in a public park, or grant a zoning permit to a synagogue.
The Court slowly but surely endeavored to ameliorate the harm of Lemon. Over the last few decades, the Supreme Court has repeatedly declined to apply Lemon in many cases where it seemed to be the governing law. Unfortunately, because the court never explicitly stated that Lemon was reversed, lower courts continued to apply its strict rule.
While religious litigants were very likely to win at the Supreme Court, the vast majority of cases never reach the Supreme Court. Religious Americans were left at the mercy of lower court judges, many of whom continued to apply Lemon in a merciless manner and fell influence to rampant, anti-religious sentiment. It is unknown how many religious Americans simply gave up when a city told them that Lemon prevented it from allowing them to exercise their religion.
The Dawn of a New Era: Kennedy v. Bremerton
Lemon was finally laid to rest in October 2021 with Kennedy v. Bremerton, a landmark case that held that the football coach of a public high school did not violate the Establishment Clause by engaging in silent prayer after games.
What are the key elements of the Court’s decision in Kennedy v. Bremerton School District and how does it contribute to the evolving jurisprudence on the Establishment Clause
— to religious institutions or individuals. This led to an environment in which religious liberty was often seen as a second-class right, limited by the fear of potential establishment clause violations.
However, in recent years, the Supreme Court has gradually moved away from the strict Lemon test and towards a more balanced approach that respects religious liberty while still preventing government endorsement of religion. One notable case that exemplifies this shift is Kennedy v. Bremerton School District.
In Kennedy v. Bremerton, the Court ruled in favor of a high school football coach who was fired for praying on the field after games. The Court acknowledged that the coach’s actions did not violate the establishment clause because they were private and voluntary expressions of his faith.
This decision marked a turning point in Establishment Clause jurisprudence by recognizing that religious expression does not automatically constitute government endorsement of religion. It provided a clear distinction between private, voluntary religious acts and state-sponsored religious activities.
A Bright Future for Religious Liberty
The shift from the Lemon test to a more nuanced approach can be seen as a gateway to a new era of religious liberty in America. Recent decisions, such as Masterpiece Cakeshop v. Colorado Civil Rights Commission and Our Lady of Guadalupe School v. Morrissey-Berru, have further solidified protections for religious freedom.
In Masterpiece Cakeshop, the Court ruled in favor of a baker who declined to create a wedding cake for a same-sex couple due to his religious beliefs. The Court emphasized the importance of neutrality and respect for religious convictions in the context of public accommodation laws.
In Our Lady of Guadalupe School, the Court extended the “ministerial exception” to protect the autonomy of religious institutions in employment decisions. This decision recognized the unique role of religious schools in shaping the faith and character of their students.
These cases demonstrate a growing recognition of the fundamental role that religious freedom plays in American society. They reflect a shift towards a more robust protection of religious liberty, while still respecting the rights of others. They also signal a willingness by the Court to reconsider and refine its approach, paving the way for future decisions that strengthen religious liberty.
The Importance of Vigilance
While we may be entering a new era for religious liberty, it is crucial that we remain vigilant in protecting and promoting this fundamental right. Threats to religious freedom still exist, both from governmental overreach and societal pressures.
Religious liberty organizations continue to play a vital role in defending the rights of individuals and institutions. Their work ensures that religious beliefs and practices are respected and protected, regardless of changing cultural norms or political trends.
As we navigate this new era, it is essential to engage in open dialogue and respectful debate about the intersection of religious freedom and other societal interests. Through this process, we can strike a balance that honors the diversity of beliefs and upholds the principles on which our nation was founded.
In conclusion, while it is easy to succumb to alarmist rhetoric about the state of religious liberty in America, a closer look reveals a more optimistic picture. Recent Supreme Court decisions have paved the way for a new era of religious liberty, one that respects the rights of individuals and institutions to freely express and practice their faith. As we move forward, it is crucial that we remain committed to protecting and promoting religious freedom for all Americans.
Read More From Original Article Here: Why Establishment Clause Jurisprudence Is Moving From Sour To Sweet
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