Russell Shaw Religion and the Court

Aug 12, 2021

Has the Supreme Court sold out to religion? You could be excused for thinking so if all you had to go on was the hue and cry protesting things the court did last term. And now that furor on the left is growing even more intense in anticipation of a new term with abortion and aid to religious schools on the agenda.

Yet the court’s religion-friendly actions simply reflect the fact that, unlike claims advanced on behalf of some causes embraced by the left, religious free exercise is enshrined in the Constitution’s First Amendment itself along with other basic rights like freedom of speech and freedom of assembly.

The Supreme Court’s most notable religious liberty decision last term was its unanimous June 17 holding in Fulton v. Philadelphia that the city erred in forcing the local Catholic social services agency out of foster care for refusing to place children with same-sex couples.

But by no means was that the only case in which the justices came down on religion’s side. Several times they reversed pandemic-related government restrictions on religious services tougher than those imposed on commercial enterprises. And at term’s  end they overturned a lower court decision upholding efforts to force Amish farmers in Minnesota to use modern technology--contrary to their religious convictions--to dispose of wastewater.

Looking to the future, the justices have agreed to hear yet another religious liberty appeal in the term that begins October 4. And a few weeks later--the date hadn’t been set when this was written--the court will take up an abortion case from Mississippi  (Dobbs v. Jackson Women’s Health Organization) which, though not involving free exercise, is obviously of intense interest to many religious bodies.

A flood of amicus curiae briefs, many from church sources including Catholic ones, have been filed in Dobbs--no surprise, considering that both sides believe it could produce a Supreme Court ruling overturning Roe v. Wade, the 1973 decision that first legalized abortion.

The free exercise case (Carson v. Makin) comes from Maine and like Dobbs has the potential of generating a landmark ruling--here, on the vexed question of aid to religious schools. In a state where more than half the school districts do not have public high schools, Maine’s education department gives tuition grants for students to attend public or private schools, either in or out of the state, but requires that a private school be “nonsectarian” to qualify for funding.

Parents who want to send their children to Christian schools challenged that policy, but the First Circuit U.S. Court of Appeals last October approved refusing tuition funds to any school which “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” The parents say this reflects a “sordid doctrine” that discriminates against religion.

In a recent New York Times column Linda Greenhouse, a reliable voice of liberal opinion on Supreme Court matters, argued that what the justices had done lately amounted to giving religion “most favored nation” status. 

In a narrow sense, Greenhouse may be right. But in a larger sense the court’s actions are grounded not in the obscure 1993 case called Church of Lukumi Babalu Aye v. Hialeah that she cited but in the words of the First Amendment prohibiting government action that penalizes the exercise of religious liberty. 

If the court really is engaged in breathing new life into free exercise, that’s worth celebrating despite those groans from the secular left.