On demand 1h 21s Intermediate

The Conscience Exemption in the Supreme Court

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The Conscience Exemption in the Supreme Court

For more than 150 years people have been asserting that they have an exemption from various governmental requirements based upon their sincere religious beliefs. This lecture reviews the history of those exemptions and the state of the law of freedom of religion as it is today.

Transcript

- Good morning, today's program concerns The Conscience Exemption in the Supreme Court. The tension between those who profoundly believe in their faith and the demands of society have been part of the fabric of American society since its inception. In 1878, George Reynolds was a resident of the Utah territory. His wife was Mary Ann Tuddenham. He was still married to Mary Ann when he married Amelia Jane Schonfeld. Federal law said, "Every person having a husband or wife living who marries another, whether married or single, in a territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and imprisonment for a term of not more than five years." By being married to two women at the same time, Reynolds had clearly broken the law, a fact he did not dispute, but Reynolds was a member of the Church of the Latter Day Saints, the Mormon Church. Reynolds argued that his religion required him to marry multiple women. As a result of Reynolds legal defenses, he argued that the law was unconstitutional. He said it violated the First Amendment right to freedom of exercise of religion. He believed his religious duty required him to marry multiple women. The penalty for refusing to practice polygamy was eternal damnation. He was convicted. Eventually his case came before the Supreme Court. The Court held his conviction and Congress's power to prohibit polygamy. The Court reasoned, "Congress cannot pass a law for the government of the territories, which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such exercise of religion. The First Amendment to the Constitution expressly forbid such legislation. Congress was deprived of all legislative power over your opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." In other words, while Congress could not outlaw belief in the correctness of polygamy, it could outlaw the practice of it. This was in part, the Court held, because marriage was quote, "the most important," unquote, feature of social life. Upon it, marriage, society may be said to be built. Marriage while from its very nature, is a sacred obligation, is nonetheless in most civilized countries, the Court went on, "a civil contract and usually regulated by law. Finally," the Court concluded, "the people cannot excuse themselves from the law because of their religion." Quote, "Can a man excuse his illegal practices because of religious belief? To permit this would make the professed doctrines of religious beliefs superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could only exist in name under such circumstances," the Court concluded. in 1890, the Mormons officially rejected polygamy and issued a statement dissolving any marriages forbidden by the law of the land. Thereafter, Utah joined the Union. the United States against Ballard in 1944. The Supreme Court ruled that the courts cannot examine the truth or falsity of religious beliefs. The I Am movement was a spiritual renewal group centered around a man named Guy Ballard, who believes he was a divine messenger with the power to heal people afflicted with incurable illnesses. Ballard and other co-defendants were charged under a mail fraud statute that required proving a knowing intent to defraud. At issue were 18 statements, most of which involved matters of religious belief. The trial judge held that the jury could not assess the truth or falsity of the religious beliefs, only whether they were sincerely held. After the defendants were found guilty, the Court of Appeals reversed the District Court, focusing solely on the sincerity of belief. The Supreme Court reversed the ruling. Writing for a five-four Court, justice William Douglas asserted that the First Amendment does not allow courts to inquire into the truth or falsity of religious beliefs. Douglas also stressed how the Constitution's framers, well aware of the, quote, "extreme views of religious groups," close quote, and the quote, "violence of disagreement among them," close quote, envisaged that the widest possible toleration of conflicting views. He conceded that the views of the I Am movement might seem incredible if not preposterous to some, but added that if a jury inquired into the truth of these views, the same might apply for other sects, because the First Amendment does not select one group or any type of religion for preferred treatment. Chief Justice Stone dissented, accusing the majority of according Constitutional immunity in cases of fraud based on religious statements. Justice Jackson also dissented. Finding the distinction between the sincerity and truth of religious beliefs untenable he wrote, "The most convincing proof that one believes in statements is to show that they have been true in his experience." He would've rejected all prosecutions related to religious beliefs. In addition to expanding religious freedom for individuals, Ballard is a key case in establishing the idea that courts should not become involved in religious controversies. Central to the issue of conscientious objector exemptions have been the definition of religious belief. The 1917 Draft Law provided exemptions only to those who were members of quote, "well-recognized religious sects or organizations whose existing creed or principles forbid its members to participate in war in any form." This in effect meant that only organized religions in the traditional Judeo Christian sense could seek the exemption. In US against Macintosh in 1931, Chief Justice Hughes' opinion slightly expanded the definition. He wrote, "The essence of religion in belief is a relation to God involving duties superior to those arising from any human relation." This definition became the basis for that adopted by Congress, when it revised the draft laws during the Second World War. the Selective Service Training Act of 1940 reflected growing tolerance of religious diversity. It allowed conscientious objector status to persons conscientiously opposed to war in any form because of religious training and belief, even if that belief was not contained in the dogma of an established church. In 1948, Congress changed the law to specify that religious training and belief should require belief, quote, "in relation to a Supreme Being involving duties to those arising from any human relation, but not including essentially political, sociological, or philosophical views, or merely a personal moral code." Daniel Andrew Seeger, an agnostic, was convicted in the district court in the Southern District of New York for refusing induction to military service. He'd filed for an exemption in 1957, after his student draft classification expired, and he was reclassified 1-A. In his exemption claim, he declared that he was conscientiously opposed to war in any form because of his religious belief, but he neither acknowledged nor denied a belief in a Supreme Being. He used the philosophers Plato, Aristotle and Spinoza to support his ethical belief in moral integrity. Quote, "Without belief in God, except in the remotest sense," unquote. Though his belief was determined to be sincere and based upon individual training and belief, Seeger was denied an exemption because his claim was not based on the belief in a Supreme Being, as specified in the draft statute. The trial court convicted Seeger, who appealed. The Court of Appeals reversed, ruling that the Supreme Being requirement in the draft law distinguished between internally derived and externally compelled beliefs, and thus an impermissible classification under the Fifth Amendment Due Process clause. The Supreme Court, which considered Seeger's case along with related cases of two other defendants, unanimously affirmed the Appellate Court judgment. Since the lower court had found Seeger's belief to be sincerely held, the issue in question was the definition of religious belief. "This question," said the Court, "was a narrow one. Whether the phrase Supreme Being as used in the statute meant only the orthodox concept of God, or a broader concept of a power or being or faith to which all else is subordinate, and upon which all else is ultimately dependent." Examining the development of the draft laws since 1917, the Court found no evidence that Congress wanted the acts to apply only to those holding traditional theocratic beliefs, and noted the well-established Congressional policy of equal treatment for those under whose opposition to service is grounded in their religious tenets. It his decision for a unanimous Court, Justice Clark wrote, "The Draft Law's terminology was meant to include all religions," and further emphasized that, "exempting some religions but not others would be unconstitutional." Under its interpretation, the Court found the proper test of religious belief should be, "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to those filled by the orthodox beliefs in God of one who clearly qualifies for a conscientious objector exemption." Justice Clark noted that, "The construction appropriately acknowledged that the ever-broadening understanding of the modern religious community." He cited the work of theologians Paul Tillich and John AT Robinson, the Bishop of Woolwich, and the analysis of ethicist David Saville Muzzey, as well as findings of the second Vatican Council, as examples of more tolerant understanding." And he emphasized it was not the role of the government to judge the truth of any person's religious belief. "As Justice Douglas stated in US V Ballard," Clark wrote, "men may believe what they cannot prove. That may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. But," Justice Clark emphasized, "Congress clearly stated that the conscientious objector exemption should apply to persons whose belief are based on a merely personal moral code." The Court determined that Congress intended this part of the law to exclude those whose moral code was not related to a religious belief. Since the Court had already determined that Seeger's claim met the standard for religious belief, it could not therefore be considered a personal moral code. "We think it clear, the Justice wrote, "that beliefs that prompted Seeger's objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers." The Court upheld the circuit court reversal of Seeger's conviction. In a separate concurring opinion, Justice Douglas reiterated the importance of equal protection in religious matters. "If Congress were to distinguish between religions," he wrote, "that would violate both the Free Exercise clause of the First Amendment and the Due Process clause of the Fifth Amendment." Douglas also added the words, "a Supreme Being have no technical meaning in the field of religion." He cited Hinduism and Buddhism, neither of which is based on the concept of a Supreme Being, as beliefs that illustrate the fluidity and evanescent scope of the concept. Douglas wrote that he was confident that Congress's tolerance and sophistication would allow this broad construction of religious belief. From its earliest decisions, the Court has tried to strike a balance between the competing interests of church and state. In Sherbert versus Verner, the Court held that only a compelling state interest could justify imposing a burden on religion. Adiel Sherbert, a member of the Seventh Day Adventist church was fired from her job after refusing to work on Saturday, the Sabbath day of her faith. The Employment Security Commission ruled that she could not receive unemployment benefits because her refusal to work on Saturday constituted a failure without good cause to accept available work. Under South Carolina law, employers were not allowed to require employers to work on Sunday. The Free Exercise clause prohibits the government from setting unemployment benefit eligibility requirements, such that a person cannot properly observe key religious principles. In a majority opinion written by Justice Brennan, the Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on that basic First Amendment right. Justices Douglas and Stewart concurred in separate opinions. Justice Harlan joined by Justice White dissented on the grounds that Seventh Day Adventists were unavailable for Saturday work, just as anyone who refuses Saturday work is unavailable, and that the effect of the Court's decision was to require South Carolina to make an exception in favor of those whose unavailability for work stems from religious convictions. There are dozens of cases in which the Court's attempts to balance the competing interests of religious belief and the state. The Court first examines the sincerity of the religious claim being advanced. This may involve a trial or hearing before the trial court or administrative body, that examines the degree to which the regulation being challenged interferes with the religious belief, then it weighs the importance of the secular value underlying the rule, the impact an exemption would have on the regulatory scheme, and whether a less restrictive alternative is available. While these standards are easy to articulate, their application is difficult at best. As the strength of the so-called religious right has grown in this country, and the large number of federal judges of at all levels, but especially the Supreme Court, are prepared to give great latitude to claims of religious infringement, several cases in the last six years have shifted the balance toward the claim of religious interference and away from the state. The first of these cases is Burwell against Hobby Lobby. The court extended the protections of RFRA to closely held corporations, a matter which has upset corporate lawyers who have always viewed corporations, either closely held or publicly traded, to be different from individuals. The Green family owns and operates Hobby Lobby stores, a national arts and craft chain with over 500 stores and over 13,000 employees, It's also a sub chapter S corporation. The Green family has organized the business around the principles of the Christian faith, and have explicitly expressed the desire to run the company according to biblical precepts, one of which, they assert, is that the use of contraception is immoral. Under the Patient Protection and Affordable Care Act, employment-based health group healthcare plans were required to provide certain types of preventative care, such as FDA-approved contraceptive methods. While there are exemptions available for religious employees and not-for-profit religious organizations, there were no exemptions for for-profit institutions such as Hobby Lobby. On September the 12th, 2012, the Greens, as representatives of Hobby Lobby, sued the Secretary of Health and Human Services and challenged the contraception requirement. The plaintiffs argued that the requirement that the employment-based healthcare plan cover contraception violated the free exercise of the First Amendment and the Religious Freedom Restoration Act of 1993. The plaintiffs served a preliminary injunction to prevent the enforcement of tax penalties, which the District Court denied, and the Court of Appeals for the 10th Circuit affirmed. The Supreme Court also denied relief, and the plaintiffs filed for an on bank hearing in the Court of Appeals. the on bank panel of the Court of Appeals reversed, and held that corporations were quote, "persons", unquote, for the purpose of RFRA, and had protected rights under the free exercise clause of the First Amendment. In the Supreme Court, Justice Alito delivered the opinion for the five-four majority. The Court held that Congress intended for RFRA to be read as applying to corporations, since they were composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider to be abortion, which goes against their stated religious beliefs or face significant fine, it creates, in his view, a substantial burden that is not the least restrictive method of satisfying the government's interest. In fact, he argues, a less restrictive method exists in the form of HHS's exemption for nonprofit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby. Additionally, the Court held that this ruling applies only to the contraceptive mandate in question, rather than to all possible objections to the Affordable Care Act on religious grounds, as the principal dissent feared. In his concurrence, Justice Kennedy wrote that the government had not met its burden to show that there was a meaningful difference between nonprofit religious institutions and for-profit religious corporations under RFRA. Because the contraception requirement accommodates the former while imposing a more restrictive requirement on the latter without proper cause, the requirement violates RFRA. Justice Ginsburg dissented. She argued that the majority decision was precluded by the Court's decision in Employment Division of Oregon against Smith, in which the Court held that there is no violation of a person's freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. Additionally, judicial precedent states that religious beliefs or observance must not impinge on the rights of third parties, as the sought-after exemption would do to women seeking contraception in that case. She also went on to write, "The majority opinion misconstrued RFRA as a bold legislative statement with sweeping consequences, because for-profit corporations cannot be considered religious entities. The burdens respondents claim is not substantial," in her view, "and the government has shown a sufficiently compelling interest." Finally, Justice Ginsburg argued that the contraception mandate does not violate RFRA. Justices Sotomayor, Breyer and Kagan joined in the dissent. In a separate dissent, Justices Breyer and Kagan wrote that the Court need not decide whether for-profit corporations may sue under RFRA. Hobby Lobby has been interpreted to mean that RFRA does not permit a court to inquire into the reasonableness of religious belief. If the proffered belief is sincere, it is not the place of the court to second guess it. This flips the burden in religious freedom cases. The government now has the burden to justify a substantial burden on religion. Such interests include racial discrimination such as in the Bob Jones University case, and the mandatory participation in the social security system, in the Lee case of 1982 and other similar cases. One of the areas that I have not mentioned, but I believe central to the Court's analysis, is the issues of women's health and reproductive rights. I do believe that the Court's majority does not value women's rights and health in the same way that it values other potential infringements of voice. There is no question as to where Trump administration Attorneys General stood on the issue of the conscience exemption, and also on the issue of women's reproductive rights, that has modified under the Biden administration. Hobby Lobby and the cases which follow it represent a further deviation from the cases which preceded it. In each of the cases that preceded it, if the claimant seeking a religious objection sought to preserve the objection for him or herself, a Mormon being allowed to practice, a conscientious objector not wanting to carry a gun, a kosher butcher wanting to open a shop on Sunday, and on and on and on. But the Roberts Court has allowed the religious belief of employers to affect the rights of its employees. It's one thing for the owners of Hobby Lobby to say they wish to avoid insurance which excludes certain kind of contraceptive protection, but by their action they make it possible for their employees who may not share the beliefs of the owner to be deprived of contraceptive coverage because of where they work. In a subsequent term, the Supreme Court decided the Little Sisters of the Poor case. The women's health amendments of the Affordable Care Act requires that women's health insurance include coverage for preventive healthcare, including contraception. The rule provides that a not-for-profit religious employer who objects to providing contraceptive services may file an accommodation form, requesting an objection to the requirement, and thereby paying for or otherwise participating in the provision of contraception coverage towards employees. In Hobby Lobby, the Supreme Court held that RFRA's closely held corporations were also entitled to invoke the exemption, if they had sincere religious beliefs to the provision of contraceptive coverage. Then in Wheaton College versus Burwell, decided also in 2014, the Court held that an entity seeking an exemption need not file the accommodation form, but rather its notification to HHS was sufficient to receive the exemption. HHS and the Departments of Treasury and Labor promulgated a final rule in compliance with these rules. Then in 2017, it Zubik against Burwell, the Court considered another challenge to the rule, which merely asserted that submitting the accommodation notice itself, substantially burdened the exercise of religion. In a concurring opinion, the Court denied to even reach the merits of that question. In 2017, the Departments of HHS under the Trump administration, promulgated regulations that vastly expanded the entities eligible to claim an exemption to the requirement that group health insurance plans cover contraceptive services. The new rules, which the agencies promulgated without notice of proposed rulemaking or soliciting public comment, expanded the concept of religious exemption and added a quote, "moral", unquote, exemption. Pennsylvania and New Jersey challenged these rules in the federal district court, alleging that they violated the Constitution, federal anti discrimination laws, and the Administrative Procedure Act. After a hearing and reviewing evidence, the district court issued a nationwide injunction enjoining the rules enforcement, finding the states were likely to succeed on their APA, Administrative Procedure Act claim. The Court of Appeals for the Third Circuit affirmed. "The Departments of Health and Human Services, Labor and Treasury have the authority under the Affordable Care Act to promulgate the religious and moral exemptions. They promulgated these exemptions consistent with the manner required under the Administrative Procedure Act," Justice Thomas wrote for the five-judge majority. First, the Court considered whether the Department had the statutory authority to promulgate the rules. The relevant provision of the Affordable Care Act states that insurers provide women, quote, "additional preventive care and screenings, as provided for in comprehensive guidelines supported by the Health Resources and Services Administration." The court interpreted this as providing for language to be a broad ground of authority and discretion, to decide what counts as preventive care and screenings, including the ability to identify and create exemptions. Because it found the Affordable Care Act gave the Departments the authority to promulgate these exceptions, it did not need to consider whether RFRA required or authorized the exceptions. Instead, it was appropriate for the Departments to consider RFRA, because of the likelihood of conflict between the contraceptive mandate and RFRA. Then the Court considered whether the Departments had violated the procedure requirements of the Administrative Procedure Act. The Court rejected the argument that the procedure was defective due to the Department's naming the relevant document "Interim Final Rules" with requests for comment, instead of general notice of proposed rule making. Additionally, the Court rejected the argument that the rule was invalid because the Departments had failed to keep an open mind during the notice and common period, open mind. Justice Alito authored a concurring opinion, in which Justice Gorsuch joined. Justice Alito argued that the Court should have gone further and ruled not only that it was appropriate for the Departments to consider RFRA, but also that Departments were required by RFRA to create the religious exemption or something close to it. Justice Kagan authored an opinion concurring in the judgment in which Justice Breyer joined. In Justice Kagan's view, the language of the Affordable Care Act justified granting the authority was ambiguous, and the doctrine of the Chevron Defense, which requires the Court to defer to the agency's reasonable interpretation of a statute, that HRSA had the power to create exemptions for the contraceptive mandate should be reviewed. Though concurring in the Court's judgment, Justice Kagan would remand the case for the lower court to determine whether the exemptions are the product of reasonable decision making, or instead arbitrary and capricious. Justice Ginsburg authored a very strong dissenting opinion in which Justice Sotomayor joined. Justice Ginsburg argued that the Court reached the wrong conclusion, that the language of the Women's Health Amendment authorized the administrative agency to determine only the type of women's health services, not to undermine the statutory directive to provide such services at a minimum. Justice Ginsburg noted that the Court's decision would immediately cause between 70,500 and 126,400 women to lose access to no-cost contraceptive services. The HHS regulation under review was issued in haste, ignoring the more than 8,000 comments on a proposed regulation enacted regarding the contraceptive mandate, and the exemption for which those professing sincere religious beliefs. The majority could avoid an analysis of whether the regulation went too far, in shifting the balance toward the person seeking the exemption, rather than the rights of those impacted by the exemption. The five-four majority opinion was written by Justice Thomas. He held that HHS was free to consider the impact of religious exemption going forward, and that the Court in Hobby Lobby stated that the contraceptive mandate violated RFRA, as it applies to entities with so-called complicity-based objections. Justice Kagan and Justice Breyer's concurrence said that HHS did not violate the Administrative Procedure Act by enacting the regulation, but would have remanded the case for a review of the impact of the regulation on the employees of the Little Sisters, and those similarly situated. The issue of the exemption was a subject of concurring opinions by Justice Alito and Justice Ginsburg. Justice Alito takes the position that if an employer cannot undertake an act, which is innocent in itself, but has the effect of enabling or facilitating the commission of what it considers to be an immoral act, that is sufficient. Again, he emphasized that the courts are not the forum for all this, for adjudicating the sincerity or belief, but he goes further to state that it is not for the courts to say if the religious beliefs are mistaken or insubstantial. Justice Ginsburg argues that, "The Little Sisters presented an absolute position regarding contraceptive coverage. By allowing the regulation to stand, the Court had tilted the balance in a way not contemplated by the terms of the Affordable Care Act, where refusing to foster a compromise between the religious positions of the employer and the needs of the employee, the employee is required to accept the religious demands of her employer, even though she may not share those religious beliefs. I suggest that the problem for the Court is subject of this regulation itself." The subject of contraception is fraught with minefields. Roman Catholics and others are opposed to contraception, yet millions and millions of Americans, including many Roman Catholics, rely on artificial contraception in their daily lives. The Court appears to be anxious to embrace the religious view, and to subject those who must work for a religious entity to abide by their rules, even though they are just employees and not church or organization members. In the current term, there have been two cases which raised this issue. The first is the case in Maine, in which the Court held that if the state of Maine was going to fund private schools, that it could not distinguish between public religious schools and secular religious schools and private religious schools. And therefore held that the failure to fund a high school in rural Maine, which was admittedly a religious school was unconstitutional. In the second case, Joseph Kennedy lost his job as a football coach on the Bremerton, Washington school district, after he knelt at midfield to offer a personal prayer. Mr. Kennedy sued in federal court, alleging that the district violated his First Amendment free speech and free exercise rights. After concluding discovery, the parties cross moved for summary judgment. The district court found for the school board, and the Ninth Circuit affirmed. The Supreme Court reversed. The majority opinion written by Justice Gorsuch for a six-member majority constituted the Court's march to continue to alter the traditional balance between the free exercise and establishment clauses, in favor of the exercise of one's sincere religious beliefs. The majority in the dissent differ wildly on the facts. At the conclusion of each game, Coach Kennedy went to the 50-yard line to bow his head in prayer. The majority describes these prayers as quiet and private. A dissent authored by Justice Sotomayor describes the prayers as demonstrative. The petitioner invited others to join his prayers, and for years led student athletes in prayer at the same time and location. Let's be frank, everyone knows what private prayers are. Everyone also knows or should recognize that praying on the 50-yard line at the end of a game is a private prayer in a public place. In order to prevail in a free exercise claim, a petitioner must demonstrate that the government entity has burdened his sincere religious practice, pursuant to a policy that is not neutral or generally applicable. Failing either test is sufficient to trigger strict scrutiny. Majority concluded that the district had not met its burden to show that the policies were either neutral or generally applicable. The district proffered that an on-duty employee could not engage in religious conduct when it permitted personal secular conduct. The Court has used this distinction in several recent cases. It seems to believe that religious and secular conduct must be viewed through the same lens, while at the same time favoring religious conduct. Thus, the Court found that the petitioner's free speech rights were infringed. The complexities examined in Pickering against the Board of Education Township High School Division 205 Will County, and Garcetti against Ceballos. The question as phrased by the majority, written by Justice Gorsuch, is did Mr. Kennedy offer his prayers as a private citizen, or as government speech? The majority holds that Mr. Kennedy was not offering his prayers while acting in his duty as a coach. This is in my view, a constricted view of who the petitioner was and what he was doing. At the conclusion of the game, he went to the 50-yard line and bowed his head in prayer. He was on school grounds and was known to one and all as the team's football coach. The idea that because the game had ended and his coaching responsibilities had come to an end, he returned to being a private citizen is certainly inconsistent with my understanding of how everyone views a high school football coach. Also, Mr. Kennedy regularly flaunted the department's regulation. He did not intend to pray silently, but instead he invited others to join his prayer, and assumed that others might want to join him. Further, Mr. Kennedy rejected all attempts at compromise with the district. Mr. Kennedy was a school official and as such, he should not have been free to exercise his religious faith wherever it suited him. Prior to this case, it was well recognized that school officials leading prayer violate the establishment clause, not anymore. There's always been a tension between the establishment clause and the free exercise clause. For decades, the Court has recognized that in determining whether a school has violated the establishment clause, one of the relevant questions is whether an objective observer acquainted with the text's legislative history and implementation of the practice, would perceive it to be a state endorsement of prayer in public schools. The majority now says for the first time, that that endorsement simply does not matter, and essentially repudiates the test established in Lemon versus Kurtzman. Instead it offers a history and tradition test, which as dissent notes, essentially offers no guidance for school administrators. As Justice Sotomayor said, "If even judges and Justices, with full adversarial briefings and arguments tailored to precise legal issues, regularly disagree and err in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibility to manage school curriculums and events, when the Court appears to elevate individual rights to religious exercise above all else?" The Court's opinion provides little in the way of answers. The Court simply sets the stage for future legal challenges that will invariably follow the Court's decision to upset longstanding rules. The difference between the majority and the dissent are clear from the concluding paragraphs of the respective opinions. Justice Gorsuch wrote, "Respect for religious expression is indispensable to life in a free and diverse republic. Whether those expressions take place in a sanctuary, or on a field, or whether they manifest themselves with a spoken word or a bowed head, here a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance, doubly protected by the free exercise and free speech clause of the First Amendment. And the only meaningful justification the government offers for its reprisal rested on a mistaken view that it had an interest to ferret out and suppress religious observance, even as it allows comparable secular speech. The Constitution neither mandates nor tolerates this kind of discrimination." Justice Sotomayor wrote, "The free exercise clause and establishment clause are equally integral to protecting religious freedom in our society. The first serves as a promise from our government, and the second erects a backstop that disables our government from breaking it, and starting us down the path toward the past where the right to the free exercise of religion was routinely abridged. Today," she wrote, "the Court once again weakens that backstop. It elevates one's individual interest in personal religious exercise in the exact time and place of that individual's choosing, over society's interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today's decision is particularly misguided," she writes, "because it elevates the religious rights of a school official, who voluntarily accepted public employment, and the limits that that public employment entails, over those of his students who are required to attend school, and who this Court has long recognized are particularly vulnerable and deserving of protection. In so doing, the Court sets us further down a perilous path in forcing states to entangle themselves with religion, and with all rights hanging in the balance. As much as the Court protests otherwise, today's decision is no victory for religious liberty" The Roberts Court is populated with judges who are religious and believe that religious principles, precepts and beliefs are paramount. It is altering the vital balance between the free exercise clause and the establishment clause. The tension between them is one that should be cherished, rather than skewed to favor one clause over the other for the perceived benefit of those who claim loudly their religious beliefs, where every person who says that their beliefs should be displayed loudly in the public square, there are an equal number who say, "Beware the righteous." Until now, the Supreme Court had not taken sides. A drive to achieve a specific result, which is after all, how far too many recent decisions seem, have been used to interpret the Constitution so that would be unrecognized by the Founders, and all those who have studied Constitutional Law for decades, it is regrettable. To continue, the other case decided this year by the Supreme Court was Carson against Makin, M-A-K-I-N. Maine enacted to a program of tuition assistance for parents who lived in school districts that neither operate a secondary school of their own, nor contracted with a particular school in another district. Under that program, parents designated the secondary school they would like their child to attend, and the school district transmitted payments to that school to defray the cost of tuition. Participating private schools had to meet certain requirements to be eligible to receive tuition payments. Since 1981 however, Maine has limited tuition assistance payments to so-called non-sectarian schools. The petitioners sought tuition assistance to send their children to Bangor Christian Schools and Temple Academy. Both BCS and Temple Academy are accredited, but the schools do not qualify as non-sectarian, and thus were ineligible to receive tuition payments under Maine's tuition assistance program. Petitioners sued the Commissioner of the Maine Department of Education, alleging that the non-sectarian requirement violated both the free exercise and the establishment clauses of the First Amendment, as well as the equal protection clause of the 14th Amendment. The district court rejected petitioner's constitutional claims, and the First Circuit affirmed. The Supreme Court reversed. It held that the non-sectarian requirement for otherwise generally available tuition assistance programs violated the free exercise clause. The free exercise clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions. Five years ago, the Court applied this principle in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church against Comer, the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground services, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity. The Court held that the free exercise clause did not permit Missouri to expressly discriminate against otherwise eligible recipients by disqualifying them for a benefit solely because of their religious character. And in Espinoza versus the Montana Department of Revenue, the Court held that a provision of the Montana constitution, which barred government aid to any school controlled in whole or in part by any church, sect or denomination, violated the free exercise clause by prohibiting families from using otherwise available scholarship funds at religious schools. The Court held that the principles applied in Trinity Lutheran and Espinoza were sufficient to resolve the case. Maine offers its citizens a benefit, tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments. Unlike the daycare center in Trinity Lutheran, the religious schools in this case are disqualified from this generally available benefit, solely because of their religious character. Likewise in Espinoza, where the Court considered a state benefit program that provided public funds to support tuition payments to private schools, and specifically carved out private religious schools from those eligible to receive such funds. Both that program and the program under review in the Maine case are disqualified solely because they are religious. The key manner in which participating private schools are required to resemble Maine public schools however, is that they must be secular. Maine may provide a strictly secular education in its public schools, but two schools which have applied for tuition reimbursement here, like numerous other recipients of Maine tuition assistance payments, are not public schools. Maine has chosen to offer tuition assistance that parents may direct to public or private schools of their choice. Maine's administration of that program is subject to the free exercise principles governing any public benefit program, including the prohibition on denying the benefit based upon a recipient's religious exercise. Thus, the Court held that the state of Maine, by denying assistance to private schools because they were religious, were violating the 14th Amendment as well as the First Amendment. Justice Breyer dissented. He notes that, "The First Amendment's two religion clauses together provide the government shall make no law respecting an establishment of religion, or prohibiting the free exercise of religion. Each clause," he notes, "is cast in absolute terms. The first clause, the establishment clause, seems to bar all government sponsorship, financial support or active involvement in religious activity. While the second clause, the free exercise clause, appears to bar all governmental restraint on religious practice. The apparent absolutist nature of these two prohibitions means that either clause, if taken to a logical extreme, would tend to clash with the other. Because of this, commentators have regularly noted that these two clauses are frequently in tension, and often exert conflicting pressures on government action. On the one hand, the free exercise clause protects religious observers against unequal treatment. In the education context, this means that the states cannot generally bar religious schools from public's benefits solely because of the religious character of their schools. On the other hand, the establishment clause commands a separation of church and state. A state cannot act to aid one religion, aid all religions, or prefer one religion over another. This means that the state cannot use its public school system to aid any or all religious faiths or sects, the dissemination of their doctrine or ideals, nor may a state adopt programs in its public school, which aid or oppose any religion. Although the religion clauses are in practice often in tension, they nevertheless express complementary values," he noted. "Together, they attempt to chart a course of constitutional neutrality with respect to government and religion. They were written," Justice Breyer wrote, "to help create an American nation free of the religious conflict that had long plagued European nations with a government-established religion." The religion clauses, therefore, created a compromise in the form of religious freedom. They aspired to create a benevolent neutrality, one who, which permit religious exercise to exist without sponsorship and without interference. Applying these clauses, many commentators have noted that there is room for so-called play in the joints between them. This doctrine reflects the fact that it may be difficult to determine in any particular case whether the free exercise clause requires the state to fund the activities of a religious institution, or whether the establishment clause prohibits the state from doing so. The Court has provided general interpretive principles that apply uniformly in all religion clause cases. At the same time, the states have been given a degree of freedom to navigate the clauses' competing prohibitions. This includes choosing not to fund certain activities where states have a strong establishment-related reason for not doing so, and also states have the freedom to make this choice, even when the establishment clause does not itself prohibit the state from funding that activity. Justice Breyer concludes that the decisions in this case take away the flexibility in the joints, and make for a much-too-rigid analysis of the religion clauses. Justice Sotomayor wrote a separate dissent. She noted that she did dissent in Trinity Lutheran five years ago because she felt that, as Justice Breyer had said, that took away the flexibility in the joints. "Trinity Lutheran," she wrote, "veered sharply from the understanding that had existed for many years about the religion clauses. Even after assuming away an establishment clause violation," she wrote, "the Court revolutionized free exercise doctrine by equating a state's decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status." The plurality of the Court, however, tried to limit this decision to express discrimination based upon religious identity and not religious use to fund it. In other words, the state was prohibited from withholding funding from a religious entity solely because of its religious character, but retained authority to do so on the basis that the funding would be put to religious uses. Two terms ago, the Court expanded Trinity Lutheran's, what she called error, in Espinoza against Montana Department of Revenue. "The consequences of the Court's rapid transformation of the religion clause must not be understated," she wrote. "From a doctrinal perspective, the Court's failure to apply what justice Breyer and others have called the play in the joints principle here, leaves one to wonder whether anything is left of it. The Court's increasingly expansive view of the free exercise clause risks swallowing the space between the religion clauses that once permitted religious exercise to exist without sponsorship and without interference. In the five years since Trinity Lutheran," Justice Sotomayor concluded, the fear that she had, "that the Court was leading us to a place where separation of church and state is a Constitutional slogan and not a Constitutional commitment is coming clear. The Roberts Court, and its six-member majority have led everyone to a place where the separation of church and state may be viewed as a Constitutional violation." Such results had been unthinkable only a decade ago, and now they are commonplace. That for all of us is very sad.

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William Pinzler
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