A banner term for religious liberty

The Supreme Court just wrapped up a fractious term — but one that shored up the First Amendment’s guarantees of free exercise of religion and free speech. A trio of rulings, two of them just last month, rejected what one legal expert dubbed a ’70s-era understanding of the Constitution’s establishment clause.

Becket Fund counsel Mark Rienzi called the cases “part of a long cleanup of decades of religious liberty law that went far astray.” The court’s conservative majority also checked an interpretation of the First Amendment that proved unnecessarily hostile to religious expression.

In May’s Shurtleff v. City of Boston, the court ruled that a Boston program that allowed private groups to fly flags briefly outside City Hall violated the Constitution by excluding a Christian flag. Hal Shurtleff sought the city’s permission to raise a cross-adorned flag for one hour in conjunction with a Constitution Day event his nonprofit group was celebrating. In rejecting Shurtleff’s application, the city cited concerns it might convey a government endorsement of religion. The city previously approved a pro-LGBT flag, a banner honoring emergency medical workers, and a flag sponsored by a local bank.

In the unanimous ruling, the court dealt only with the free speech issue, concluding that since the city did not control what flags were hoisted, the flags constituted private and not government speech. That meant, wrote now-retired Justice Stephen Breyer, that the city could not discriminate against the Christian flag but had to treat it the same as other flags. Justices Neil Gorsuch and Brett Kavanaugh wrote separately to emphasize that even-handed treatment of religious people does not violate the Constitution’s rule that the government “shall make no law respecting an establishment of religion.”

Fair treatment for religious persons came to the forefront in the term’s other rulings affecting religious liberty. In Carson v. Makin, a conservative majority of the court sided with Christian parents in Maine who wanted to use state tuition assistance to pay for their children to attend religious schools in areas where no public school was available.

Unlike the Breyer-penned opinion in Shurtleff, Chief Justice John Roberts went right to what was at stake: unequal treatment of religious parents. Roberts wrote that while the state need not provide tuition assistance to parents, once it did so, it must treat religious and nonreligious parents alike. Otherwise, it violated the parents’ free exercise of religion, he concluded.

The term’s strongest support for religious liberty came last week, in Kennedy v. Bremerton School District, in which the court upheld the right of a former Washington state high school football coach to pray midfield at the conclusion of games. A conservative majority concluded that both the free speech and free exercise guarantees of the First Amendment protected Coach Joe Kennedy’s prayer.

Justice Gorsuch emphasized that the coach’s religious activity was not government speech subject to the school’s control because he was not acting within the scope of his duties when he prayed after the game. For the school district to censor the prayer, wrote Gorsuch, would be to endorse “a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.”

Gorsuch went on to hammer the last nail in the coffin of the legal test for determining establishment clause violations as set forth in the court’s 1973 ruling in Lemon v. Kurtzman. That decision instructed courts to ask whether a hypothetical “reasonable observer” of certain state conduct could conclude that the government was endorsing religion. That, Gorsuch wrote, would impermissibly rule out “any visible religious conduct by a teacher or coach” and would be at odds with the free exercise of religion.

“The establishment clause does not exist to tell governments that what they’re supposed to do is be extra mean toward religion,” making religious people feel like “third-class citizens,” said Becket attorney Rienzi.

For First Liberty Institute’s Jeremy Dys, co-counsel in both the Shurtleff and Kennedy cases, the trio of rulings heralded a new era for religious liberty. “The justices are reminding state actors that they have to respect religion,” Dys said, signaling to governments that “people of faith are welcome in every aspect of society.”