First Principles

A Resource for Religious Liberty

Religious Liberty is the latest in the Ashbrook Center’s series of document collections covering major periods, themes, and institutions in American history and government. 

For anyone interested in the fate of religious freedom in America Religious Liberty: Core Court Cases may be the most important guide to contemporary controversies over religion in the public square a nonspecialist can own. At least the price is right; the text of the 244-page book is also available free on the internet, in keeping with the civic education mission of the publisher, the Ashbrook Center. Nonetheless, many readers will prefer the inexpensive paperback, as they may prefer to spare themselves the cost of replacing a destroyed computer or cell phone, which is likely to come after reading some of the court’s opinions.

By selecting a diverse array of opinions on religion and the law, we at the Ashbrook Center produced a book that encourages non-specialist readers to examine the legal strife surrounding issues such as the constitutionality of “under God” in the pledge of allegiance or a prayer recited before a football game at a public school, whether a law may violate the conscience of a religious business owner, or whether a cross may be erected on public land. 

The need for this collection was striking even before the Supreme Court accepted for argument a case involving a Philadelphia law requiring the inclusion of same-sex couples as adoptive parents and faith-based adoption agencies who have rejected them. Is the law discriminatory against religious institutions or are the religious adoption agencies violating a general law against discrimination?  

How has America come to such a situation, one might ask, where the fate of children is dependent on the constitutionality of laws restricting charitable religious institutions? After all, churches have always been involved in children’s welfare, including adoptions.

Moreover, one might ask, how is that such a law does not restrict the “free exercise” of religion, as the First Amendment to the Constitution states: “Congress [or any government] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The texts in our book permit the reader to explore how the courts as interpreters of laws and our fundamental law, the Constitution, have come to such conclusions, which seem so contrary to common sense. 

As the principal editor, I did not seek to produce a book of advocacy leading to one conclusion or another but rather to offer the strongest arguments for the various sides of the controversies under scrutiny. Throughout Religious Liberty the modest study guide raises questions that encourage skepticism of all the justices’ arguments. These questions and the selection of opinions pit Supreme Court justice against justice not only within each case but over the decades. 

Contrary to most case books, we recommend that beginning readers start their inquiry from the most recent cases we include, where the controversies are clear and most striking, and then move on to the earlier precedents. To illustrate our approach, we deploy Trinity Lutheran v. Comer (2017), where the court decided, 7-2, that Missouri had violated the First Amendment by failing to permit a religious school, Trinity Lutheran, to compete for a state recycling grant to pave its playground. 

Our abridged version contained only excerpts from Justice Neil Gorsuch’s concurrence and Justice Sandra Sotomayor’s vociferous dissent. Gorsuch argued that Missouri discriminated against the school’s constitutional right to freely exercise its religion and compete for state funds. 

Sotomayor defended Missouri’s power to prevent an unconstitutional establishment of religion. The state, in her view, was trying to prevent “an unlawful fostering of religion.” Because the church school has a religious mission, its “playground surface cannot be confined to secular use….”  

Sotomayor’s puzzling attitude reflects one conclusion of almost 70 years of cases that would confine religious liberty to mere “freedom of worship,” which exists pretty much within the walls of a religious institution. Reflecting the thrust of the most recent cases, Gorsuch was arguing for a far more robust conception of religious free exercise, a pillar of a free society.   

Clashing interpretations of free exercise and establishment have led to this odd confrontation between parts of the First Amendment. Instead of taking prohibition on the establishment of religion to mean no official or established church, and all the implied political, legal, and financial advantages that go along with that, it has come to mean permitting no advantage to religion generally. Religions may not be discriminated against, but they may not, even in general, be given any advantage by government, either. The late Justice Stevens argued that the “religious neutrality” demanded by the establishment clause means neutrality between religion and non-religion. (But has any president failed to say “God bless America”?)

Furthermore, the free exercise clause has come to mean a free exercise preference for minority sects, such as Jehovah’s Witnesses, the Amish, and the animal sacrificing religion of Santeria—all victors in free exercise cases. Might “free exercise” justify these religions’ seeming defiance of general laws involving flag salutes at school, compulsory school attendance, and sanitation? 

In a pivotal case involving a state law against drug use, Employment Division of Oregon v. Smith (1990), Justice Antonin Scalia denied that religious freedom created “a private right to ignore generally applicable laws” and permit drug use for religious observers. Dissenters insisted that his opinion undermined religious liberty, and Congress passed a law, the Religious Freedom Restoration Act, limiting the court’s decision. 

So how should we apply these cases from our book to the Philadelphia adoption agency? Oddly, the late Justice Scalia, hero of conservatives, seems to have supplied ammunition to both sides, with his limitation on religious liberty claimants against general laws, on the one hand, and with his emphasis on “history and tradition” in understanding the meaning of religious establishment, on the other, from his powerful dissents in school prayer and religious monuments cases. 

We can see how Sotomayor would adopt Scalia’s Oregon v. Smith argument against religious exemptions from valid general laws and emphasize Supreme Court opinions such as Obergefell v. Hodges (2015) that made same-sex marriage a constitutional right. Her argument that allowed Missouri to prevent religious schools from receiving state funds would also prevent adoption agencies (or bakeries or other businesses, such as Hobby Lobby) from restricting their services based on their religious beliefs. She would use Scalia against the court’s most recent decisions, which have expanded free exercise and restricted the meaning of establishment, as Gorsuch advocates. This is just one element of the arguments that the court is likely to use in deciding the adoption agency case.

Religious Liberty is the latest in the Ashbrook Center’s series of document collections covering major periods, themes, and institutions in American history and government. When complete, the series (45 volumes in all) will be comprehensive, and also authoritative, presenting America’s story in the words of those who wrote it. These primary document works will be invaluable resources for undergraduate and secondary school instructors, as well as for engaged citizens.