The U.S. Supreme Court has issued a striking number of decisions in favor of religious claimants over the past several terms, leading many commentators to refer to the Roberts court as “pro-religion.”
In a country where most Americans identify as religious and some worry about rapid changes in culture, many have celebrated that perception of the nation's highest court. But that frame is overly simplistic. Worse, it confuses expectations about religion and religious liberty both at the Supreme Court and across America.
A “religious” winner doesn’t necessarily mean a win for all religions or for religious liberty itself. The American public that prizes its religious freedom deserves a better understanding.
Myth: America is a 'Christian nation'
A worrisome consequence of recent Supreme Court decisions and the perception that the court is pro-religion is that it feeds a common myth that our country is, or should be, a “Christian nation.” Unfortunately, this myth gains traction when the separation of religion and government is denigrated, as well as when religious liberty is misunderstood as privilege for public policies that align with certain religious beliefs.
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Some justices have exacerbated the problem.
At a religious liberty conference this summer in Rome, Associate Justice Samuel Alito described his view this way: “The problem that looms is not just indifference to religion, it’s not just ignorance about religion. There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.”
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To right this perceived wrong, the conservative supermajority on the court has been eliminating protections for religious liberty that have long kept the government out of essential religious matters. The court is abandoning long-standing religious liberty principles and redefining the relationship as it tears down the wall between church and state – a separation that protects the institutions of both.
Beginning of the end for avoiding government funding of religion
Trinity Lutheran Church of Columbia v. Comer was the beginning of the end for avoiding government funding of religion. This seemingly limited case from 2017 about a Missouri church’s eligibility for a government grant to fund playground improvements started a troubling trend toward funding religion itself that is at odds with a long legal tradition of keeping government out of essential religious matters. The decision unnecessarily blurred the line that ensures religion flourishes on its own.
In 2020, the court continued in that direction in Espinoza v. Montana Department of Revenue, when it again disregarded a state’s interest in avoiding funding religious education through a scholarship program.
This past term in Carson v. Makin, the court went beyond ensuring that religious entities are not excluded from government programs based on an entity’s religious status, which is understandable and consistent with earlier cases. It held that states are required to fund private religious schools if they fund other private schools, at least where there is some element of parental choice involved.
In doing so, the court failed to acknowledge traditional limits on government sponsorship of specifically religious activities, such as those that are central to many private religious schools. In other words, the court obliterated the distinction between unconstitutional discrimination based on religious status or identity, which the free exercise clause prohibits, and different treatment of religious uses or activities that ensures the government itself does not sponsor religion and violate the establishment clause.
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Faith flourishes best when it is free from government interference
It’s unclear exactly what remains of the First Amendment’s establishment clause or how far this court’s conservative supermajority will go. While consistently dismissing concerns about “no establishment," the court has expanded its understanding of what violates the free exercise of religion.
The 6-3 majority ruled last term in Kennedy v. Bremerton School District that a football coach at a public high school has a right to pray on the 50-yard line while still on the clock. The court ignored important precedents that have protected the religious liberty rights of students.
“An Extraordinary Winning Streak for Religion at the Supreme Court,” a New York Times' headline read. And Reuters announced: “U.S. Supreme Court takes broad view of religious rights in key cases.”
This news media narrative ignores faith-based support for historic principles of religious liberty that require treating religion in a distinct matter. The organization we lead, Baptist Joint Committee for Religious Liberty, filed friend-of-the-court briefs in all of the cases mentioned, explaining and defending principles that have long protected religious liberty.
Why are we not on board with the Supreme Court’s so-called defense of religious rights?
We believe that faith flourishes best when it is free from government interference. We understand that the government support for religion in public programs – including forcing all taxpayers to fund religious groups – is seductive to many religious Americans in a time of declining religiosity, but that this path doesn’t lead to strong religious institutions.
In fact, a new study found that religions around the world receiving government favoritism actually lose ground relative to those that do not.
We're Baptists and constitutional law experts
In the First Amendment, the framers protected religion in a distinct way, yet today the Supreme Court often views treating religion differently as religious discrimination. This change in religious liberty law is deeply troubling.
In addition to being constitutional law experts, we’re both Baptists and value our religious tradition’s long-standing support for faith freedom for all. We know the cases that come to the Supreme Court require thoughtful attention, beyond headlines that set up a false dichotomy of “religion” versus the nonreligious.
We set up a place to have these respectful conversations, giving them the time and consideration they deserve. We are about to launch Season 4 of the "Respecting Religion" podcast. Each week, we discuss what’s at stake for religious liberty in the world today, including cases at the Supreme Court and the ongoing rise of Christian nationalism in the United States. We can’t cede the discussion of religious liberty to those who are abandoning long-standing principles that protect religious liberty.
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This term, the court will return to the issue of whether a business can refuse to provide wedding-related services to customers in protected classes based on the owner’s religious beliefs in 303 Creative v. Elenis. While the case will be heard on free speech grounds and not free exercise grounds, we expect to see the pro-religion framing pop up again.
We are also deeply concerned that there are four justices who were ready to intervene in another religious liberty dispute about Yeshiva University, even before the case could be properly considered in the lower courts.
If religious liberty is going to continue to be a defining characteristic of our country, we need more nuanced conversations about SCOTUS and religion and what is at stake for our country and our communities. That’s what we’re aiming to provide with our podcast. We hope you will join us.
Amanda Tyler and Holly Hollman lead the Baptist Joint Committee for Religious Liberty and co-host the "Respecting Religion" podcast, where they discuss the latest developments on religion and the law each week. Season 4 of the podcast premieres Thursday.
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This article originally appeared on USA TODAY: Supreme Court ignores precedents that protect religious freedom