WASHINGTON (CN) — Sixty years after it had called it unconstitutional for state officials to establish official school prayers in public schools, the Supreme Court now has two decisions from a single term that bolster the rights of Christian schools on one hand and Christian public school employees on the other.
The conservative supermajority called it discriminatory in the first case, Carson v. Makin, for Maine not to let sectarian schools avail themselves of a taxpayer-funded tuition program. It cried discrimination again in the second, Kennedy v. Bremerton School District, this time criticizing the firing of a public high school football coach whose post-game prayers at the 50-yard line became a media spectacle.
Decided in the same term, and indeed the same week, as the ruling that overturned the federal right to an abortion enshrined in Roe v. Wade, the religious cases have been sharing a tense and crowded spotlight.
Americans United for Separation of Church & State, for one, has warned that minority religions will not find it as easy as Christian ones to share in the same religious protections that the conservative majority purports to be shoring up.
“Religious liberty doesn't win when majority religion is able to trample upon the rights of minorities or coerce members of minority religions or nonbelievers to take part in religious exercises,” said Alex Luchenitser, associate vice president and associate legal director at the group.
In addition to the Carson and Kennedy cases, Americans United for Separation of Church & State has been involved in and filed amicus briefs for other religious entanglements before the court.
“The Supreme Court has become so hostile toward the principle of separation of religion and government that has served our country so well for centuries and that has prevented religious strife and ensured equality among people of different faiths,” Luchenitser said in a call. “The Supreme Court has now embarked on a path that could lead to increased division and conflict between religious groups.”
Both the Maine school tuition case and the praying coach case saw the justices split 6-3 along ideological lines, and both saw words of alarm from Justice Sonia Sotomayor. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” the Obama appointee wrote in dissent to Carson.
The court's jurisprudence around religion and the state has historically been a balancing act between two clauses in the First Amendment. The Free Exercise clause protects citizens’ right to practice religion, but that right is limited by the Establishment clause, which prohibits the government from establishing a religion.
“As the court used to say, there's a play in the joints between the two clauses, and they try to figure out how the clauses relate,” said Frederick Lawrence, a distinguished lecturer at Georgetown Law.
How the court got to Carson and Kennedy today shows a shift in that balance.
“This is a court now twice … who have substantially dialed back the Establishment clause and substantially elevated the Free Exercise clause,” Lawrence said.
“Since 1962 we have said that formal school prayer in public schools is unconstitutional because it constitutes an establishment of religion,” he added. “So I think this is a dramatic change. As shoes keep dropping, I wouldn't be at all surprised to see the overturning of the original Engel v. Vitale case in 1962."
The Carson and Kennedy rulings both bill themselves as focused on preventing religious discrimination.
“There is nothing neutral about Maine’s program,” Chief Justice John Roberts wrote for the majority in Carson. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
In the majority opinion in Kennedy, Justice Neil Gorsuch said the school was suppressing religion.
“The Constitution neither mandates nor tolerates that kind of discrimination,” Gorsuch wrote.
To critics, however, the court’s rulings only protect majority religions and leave those most vulnerable with fewer rights.
“The court more and more allows religion to be used as a sword that can justify religious discrimination and religious coercion and less and less as a shield that ensures that all people are equal regardless of what their religious beliefs are, or what they might believe about religion,” Luchenitser said.
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