The Roberts Court and the Erasing of the Establishment Clause

 By Eric Segall

The first amendment provides that the government may make no law "respecting an establishment of religion or prohibiting the free exercise thereof." Not too long ago, the Supreme Court took both parts of the religion clauses of the first amendment seriously. The Court, however, has now decided to breach the wall of separation between church and state by effectively reading the establishment clause out of the Constitution and by re-interpreting the free exercise clause to not only bar discrimination or punishment of religion by the government but also by forbidding states from relying on establishment clause concerns to justify keeping government and religion separate. The result is a theocratic Supreme Court imposing its strong religious beliefs on both the states and the American people. These dramatic changes have occurred not because of any change in constitutional text or new historical insights but because the Justices' values have changed. 

Not too long ago, the Justices restricted the types of aid that could be given to private religious schools by the government, limited the types of religious symbols that could be placed on governmental property, and forbade teacher-led prayers in public school classrooms, high school graduation ceremonies and football games. The Court has effectively given up policing the first two classes of cases and this week showed every indication that it is on its way to abandoning the third as well. This erasure of the establishment clause is coming as the Court is beefing up the free exercise clause so that it acts as a powerful trump card against important and secular governmental interests. The real-world effect of these lines of cases is to convert the first amendment from a constitutional provision protecting religious neutrality and freedom into a clause protecting religious supremacy. 

Prior to the 2000 Supreme Court decision in Mitchell v. Helms, the Court had wrestled for decades with what kind of aid the government could provide to religious schools under the establishment clause. The Court had mostly limited such aid to secular textbooks and diagnostic testing. The rationale for these limits was that the establishment clause forbade the use of tax dollars by government officials to support religion. In Helms, however, the Court reversed a number of cases and held that the Constitution does not prohibit most government aid to religious schools as long as that financial assistance is generally available to both secular and religious schools. Nothing in Helms suggested that states had to provide such aid under the free exercise clause, just that the establishment clause did not forbit such aid.

The Roberts Court, however, has dramatically altered the balance struck by Helms. In two recent cases, the conservatives on the Court have held that if states want to assist secular private schools either through government aid directly to the schools through playground resurfacing or by making non-religious schools more affordable, it must provide the same aid to religious schools whether the states want to or not. What was once an impermissible choice under the establishment clause, and then an allowable decision under the establishment clause, is now a mandate under the free exercise clause. This shift reflects the Roberts Court's belief that local and state governments must lower the wall of separation whether they want to or not. This change in the law ignores precedent, common sense, and most importantly, federalism concerns pertaining to local decisions over local issues.

There is little debate that the Burger and Rehnquist courts struggled with the issue of religious symbols on governmental property. In a series of cases involving menorahs, Christmas trees, creches, the Ten Commandments, and other religious symbols, the Court effectively adopted a multi-factor test which included how long the symbol had been on the property, why it was placed there, and, most importantly, whether there were other secular or religious symbols surrounding the one in question. There was much to fault in these cases but these issues are hard and there has to be some limit on government discretion in this area; otherwise the Congress could put a 1000 foot cross on the nation's Capitol.

The Roberts Court effectively gutted all the angst, however, in a 2019 case upholding a 40-foot-tall cross on government land in Maryland surrounded by no other symbols. Justice Alito, a religious supremacy warrior, wrote an opinion arguing that the cross in this context was not a purely religious symbol and that it would result in hostility to religion if the Court required its removal. So on the one hand, the cross is a symbol for people of all faiths or no faith (absurd) and on the other hand removing it would show hostility to religion. The rest of the opinion is full of similar absurdities and demonstrates beyond a doubt the strong Christian bias of the Roberts Court. Justice Ginsburg's description of the case in dissent should have been enough for the case to come out the other way:

An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland. [M]onumental, clear, and bold by day, the cross looms even larger illuminated against the night-time sky.... Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission (Commission), an agency of the State of Maryland.... By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion.

Not content with requiring state and local governments to subsidize private religious schools with taxpayer money, nor allowing explicitly religious symbols on government property also at taxpayer expense, the Roberts Court is now aiming to reintroduce teacher- and/or coach-led prayer into our public schools.  First the background.

In the cases discussed in the second paragraph of this post above, the Justices ruled that teacher-led prayers in classrooms, student-led prayers at graduation ceremonies, and official prayers at football games violate the establishment clause. The rationale for these cases was the inherently coercive nature of school-, teacher-, or coach-led prayers. Public school students of no faith or different faiths than the prayers at issue often have no choice but to go along or fear retribution from their peers or even school officials. Of course, both students and teachers have the right to silently pray or quietly cross themselves whenever they wish. But putting the school's official imprimatur on prayer quite obviously endorses religion in a way that presents serious establishment clause concerns.

But the Roberts Court is about to change all that. This morning, the Court heard the case of a football coach who insisted on praying at the 50-yard line immediately after a game and audibly in a way that students, teachers, and others could join if they wanted to. The school asked him to pray privately and quietly but of course he refused and thus began a federal case. The oral argument was unnerving in many different respects, including wild hypotheticals from the conservative justices about coaches putting up political signs at their private houses and, absurdly, Justice Barrett asking if this case, where a public high school football coach, on school time and payroll, immediately after a game, was a state actor. Sigh.

The conservatives are almost certainly going to rule in favor of the coach (who now lives 3000 miles away after he and his wife left the state to take care of his sick father but mootness is a different matter). They also talked a lot at the argument about the need for establishment clause plaintiffs to show coercion to make out a violation, and that really is the end game for the Roberts Court. Requiring actual coercion under the establishment clause reads the clause out of the Constitution because the free exercise clause already forbids government coercion of religion. So at the same time that the Court is extending the free exercise clause in myriad ways across the constitutional landscape (including getting in the way of state and federal efforts to deal with a world-wide pandemic), it is effectively removing the establishment clause as a constitutional barrier to the merging of church and state. And those two moves taken together do not reflect careful readings of text, history, or precedent by the Justices but simply the religious supremacy values held by the six conservative members of the United States Supreme Court.