The Supreme Court’s church-state blind spot undermines religious freedom

Seventeen years ago, in a case involving the public display of the Ten Commandments, Supreme Court Justice Sandra Day O’Connor eloquently explained the critical role the First Amendment played in expressing this country’s “fundamental commitment to religious liberty.” In her concurrence, she wrote that the establishment and free exercise clauses of the First Amendment were written: “by the descendants of people who had come to this land precisely so that they could practice their religion freely.” 

Citing some past Supreme Court precedents, she continued: “Government may not coerce a person into worshiping against her will, nor prohibit her from worshipping according to it. It may not prefer one religion over another or promote religion over nonbelief. It may not entangle itself with religion.  And government may not …make adherence to religion relevant to a person’s standing in the political community.”

Justice O’Connor’s vision of religious freedom in the United States was not hers alone. It was James Madison who wrote that “the religion … of every man must be left to the conviction and conscience of every man.” Supporters of the basic concept of church-state separation have long understood that religion legitimately occupies a very important place in the home and in houses of worship, but not in public school classrooms or the halls of government. 

It was precisely that historic separation of church and state that enabled so many religions to flourish in this country, free from government interference, from our nation’s founding to the present day. And it was that same separation that enabled our government to function free from the consequences of state-sponsored religions that have spawned violence and hate in many other lands.

Sadly, in recent years our nation has been moving further and further away from that meaningful interpretation of the establishment clause as a guarantor of the separation of church and state.  In the name of protecting religious freedom for some, we have actually undermined religious freedom for all.  And this trend accelerated noticeably in the Supreme Court’s most recent term.

In the wake of the Supreme Court’s decisions in Carson v. Makin and Kennedy v. Bremerton School District, the establishment clause is a pale shadow of what it was when O’Connor wrote her opinion. The court held that if a state (Maine) provides taxpayer dollars to support the education of students at non-public schools, it must also fund religious schools — even those that discriminate, those that exclude students of minority religions and those that preach dogma hostile to other religions. That path is a dangerous slippery slope.  

In other words, while Catholic parents may appreciate a proposal that helps them pay to send their children to schools that teach Catechism, and Jewish parents may appreciate a proposal that helps them pay to send their children to Jewish religious schools, they should think twice when their tax dollars are also used to fund a school which preaches religious doctrine completely contrary to and perhaps hostile to what they believe. 

The court also held this term that a public high school football coach can deliver a religious prayer on a football field immediately after a game, surrounded by students who feel that not participating could jeopardize their playing time or opportunities for athletic scholarships even if the prayers being said are contrary to their own religious beliefs. 

In a world in which funding parochial education and coercing public school students to pray are found constitutional, the very concept of church-state separation seems increasingly empty and ephemeral. And absent explicit, direct coercion, this Supreme Court appears likely to accept almost any argument someone offers saying they are exercising their right to religious education or their right to pray, regardless of how the practice impacts others.

This evolution has not happened overnight. Slowly, bit by bit, we have seen efforts by those on the religious right to impose their views on others. They have, for example, claimed they should be exempt from non-discrimination laws and permitted to refuse to provide commercial services to members of the LBGTQ community because doing so violates their religious views. 

They have claimed they should be exempt from including contraceptive services in corporate health care coverage for religious reasons. They have claimed that even though they run agencies that receive and depend on government funding, they should not have to provide adoption or foster care services to those who don’t share their religious views.  And they have sought to impose their religious views on abortion on everyone else in our society. 

Religious believers, of course, are entitled to their views and to practice their religion as they choose. But historically the understanding has been that when they engage in the commercial marketplace, like everyone else, they must follow the basic laws against discrimination. They just don’t want to be bound by those same rules. 

Unfortunately, years of efforts by those on the religious right to claim their religious views should take precedence have borne fruit, and our society is the worse for it.  The common understanding and mutual respect for religious differences that have held us together as a diverse and pluralistic society is falling apart and being replaced by an American version of ethnonationalism at a tremendous cost to the present and future health of our democracy.

In Justice O’Connor’s opinion in the case mentioned above, she asked a provocative question. She wrote: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

It appears today as if we are trading that system that has served us well for one that will not, and the future looks increasingly ominous.

Steven M. Freeman is vice president of Civil Rights at ADL (the Anti-Defamation League).