In The Supreme Court’s Latest Term, The Conservative Majority Continued To Radically Transform The Role Of Religion In Public Life

While the Supreme Court’s decision to abolish the right to an abortion has garnered a great deal of attention, the same bloc of conservative justices who overturned Roe v. Wade also dramatically redefined the contours of religious freedom this term and did so in a manner that understated the true nature of the changes they made in this area of the law.

The pair of landmark decisions issued this past week—Carson v. Makin and Kennedy v. Bremerton School District—draw a stark picture of the growing protections the Court’s conservative bloc has granted to people seeking religious exemptions from secular mandates and the requirements it is willing to impose on governments to support religious institutions and activities.

Carson and Kennedy also laid bare the legal strategy that has emerged among the six Republican appointees who now constitute a super-majority on the Court. Over the past few years, these conservative justices made incremental changes to the law, ushering the Court in a rightward direction—albeit modestly enough to occasionally appeal to the liberal justices to join the conservative majority.

When the conservative bloc lurched further to the right in Carson and Kennedy, it claimed that these two cases were simply the outgrowth of the standards established in these recent precedents.

Writing for the majority in Kennedy, for instance, Justice Neil Gorsuch relied heavily on these recent rulings—many of them authored by the very conservative justices who constitute a super-majority on the Court today—to allow a football coach of a public high school to conduct post-game prayers on the field. In one footnote listing favorable precedents, Gorsuch cited ten cases, half of which were decided since 2017, the year in which he joined the Court as former President Donald Trump’s first appointment to the high court.

These references to recent precedents masked the true nature of how far the Court has gone to erode the separation of church and state that long governed American law.

Justice Sonia Sotomayor highlighted the tactic deployed by the conservative majority to recast its actions as simply the natural evolution of the Court’s case law. “The Court relies on an assortment of pluralities, concurrences, and dissents by Members of the current majority to effect fundamental changes in this Court’s Religion clauses jurisprudence,” she wrote in Kennedy in referring to the majority’s reliance on recent precedents to reach a radical outcome, “all while proclaiming that nothing has changed at all.”

In Carson, the same six justices also made use of recent precedents in rejecting Maine’s educational program. The state provided funding to parents in scarcely populated areas lacking a public school to send their children to a secular private school instead. The exclusion of religious schools ran afoul of the conservative justices.

Throughout the majority opinion, Chief Justice John Roberts Jr. frequently cited two decisions issued in the past five years—Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue—that expanded the scope of the Free Exercise clause granting religious liberty while narrowing the Establishment clause, the First Amendment provision preventing government support of religious institutions and activities.

It was no coincidence that Roberts had penned the decisions in both cases.

In 2017, Trinity held that the First Amendment’s Free Exercise clause prohibited the government from excluding a church from receiving benefits that were otherwise available to other institutions—in that case, funds for a playground. Espinoza, which came down three years later, held that if a state chose to subsidize private education through scholarships, it could not exclude students who planned to use those funds to attend a religious school.

Roberts expanded on the concepts introduced in these two cases in Carson by extending government funding to religious institutions not just for secular purposes—such as the playgrounds at issue in Trinity—but by mandating funding for openly religious activities such as religious education.

“What a difference five years makes,” Sotomayor pointed out in her dissent in Carson. “This Court,” she warned in strident terms, “continues to dismantle the wall of separation between church and state that the Framers fought to build.” The majority, she explained, embraced “arguments from prior separate writings” and ignored “decades of precedent” to upend “constitutional doctrine.”

This term serves as an indicator of what to expect going forward. Now outnumbering their liberal colleagues by a two-to-one margin ever since Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg in 2020, the Court’s conservatives seem willing to alter the legal landscape far more aggressively than in past years.

Through these cases, the Court further refashioned the delicate balance between the First Amendment’s Free Exercise and Establishment clauses, for instance. The two provisions, Justice Stephen Breyer explained in his dissent in Carson, “are frequently in tension… and often ‘exert conflicting pressures’ on government action.” He pointed out that the conservative justices were championing the Free Exercise clause while largely ignoring the importance of the Establishment clause, and in doing so, damaging the “compromise” between the two.

Sotomayor made a similar point. The “consequences of the Court’s rapid transformation of the Religion Clauses must not be understated,” she warned in Carson. “The Court’s increasingly expansive view of the Free Exercise Clause,” she wrote, “risks swallowing the space between the Religion Clauses.”

Besides the changes enacted in Carson and Kennedy, the Court’s conservatives have also broadened religious exemptions to anti-discrimination laws and secular mandates in recent years. In Hobby Lobby, for instance, the Court allowed a closely-held corporation to opt out of covering insurance for contraception that was required by the Affordable Care Act based on the religious preferences of the company’s owners. Masterpiece Cakeshop permitted a Denver baker to refuse to prepare a cake for a gay nuptial.

Though neither of those cases dealt with the scope of the Establishment clause, which was at the heart of Carson and Kennedy, they also embodied the revolutionary changes instituted by the conservative justices in the field of religion.

Sotomayor’s final words in Carson, in which she expressed her “growing concern for where this Court will lead us next” echoed this new reality.