The Roberts Court takes aim at the Establishment Clause

Texas wants to post the Ten Commandments in public school classrooms. Other states want to bring religion back to schools and public spaces. It ought to be a no-brainer — they cannot do that. The Supreme Court long ago said all this was unconstitutional. But don’t be surprised if this Supreme Court reverses or narrows its previous precedents and allows it.

The irony here is that at a time of growing secularism in American society, the current conservative majority on the court is becoming even more pro-religion, reversing decades-old precedents. Under Chief Justice John Roberts, the court has moved away from using the Establishment Clause to enforce a “high wall of separation” to protect non-Christians and nonbelievers; it now uses the Free Exercise Clause not simply to accommodate religion but to impose the religious views of a minority upon an emerging secular majority. Call this the “New Sectarianism.”

The First Amendment seeks to ensure neither government-endorsed religion (the Establishment Clause) nor interference with individual religious belief (the Free Exercise Clause). While one may not wish to make too much of it, the first words of the First Amendment are “Congress shall make no law respecting an establishment of religion.” Perhaps priority in language reflected priority in the importance to our constitutional framers.

As late as the mid-1960s, around 98 percent of Americans expressed faith in God or mainline Christianity. American religiosity was expressed in public policy, such as blue laws that limited store openings on Sunday and regulations making extramarital and nonmarital sex illegal. Birth control was banned and abortion criminalized. To enforce this morality, public schools mandated the Pledge of Allegiance, prayers and the posting of the Ten Commandments.

But the Supreme Court came to the rescue to defend the public and the minority of non-believers. It did that first with the West Virginia State Board of Education v. Barnette decision in 1943 that declared unconstitutional a state law mandating the Pledge of Allegiance. Such a law violated the religious rights of Jehovah’s Witnesses.

But the major precedents came from the liberal Warren Court of the 1960s. In cases such as Engel v. Vitale and Abington School District v. Schempp, it ruled that school prayers and Bible readings violated the Establishment Clause of the First Amendment. The Supreme Court and other federal appellate courts issued more than 60 opinions during the 1950s and 1960s generally using the Establishment Clause to protect religious minorities and the public in general from overwhelming Christian majorities.

But the Court remained vigilant even as justices came and went. In 1980, the court under Chief Justice Warren Burger in Stone v. Graham used the Establishment Clause to strike down a posting of the Ten Commandments in a public school. Even as late as 2000 under Chief Justice Rehnquist, a majority of the Supreme Court ruled in Santa Fe Independent School District v. Doe that prayers at school, including at a football game, were an Establishment Clause violation.

The consistent rule for more than half a century was that the Establishment Clause protected the public, including the nonbelieving or non-Christian minority, from religious persecution by the majority. This was the “high wall of separation” that Thomas Jefferson and James Madison described.

Beginning slowly under the Burger and then the Rehnquist Courts, the accommodationists took over. In cases such as Lemon v. Kurtzman and Allegheny v. ACLU, the Court began to erode the wall of separation doctrines, seeking to accommodate and balance the free exercise of religion with the Establishment Clause.

But accommodation has given way to New Sectarianism. Under the Roberts Court, there has not been a single case where claims of free exercise of religion have been rejected. The court has consistently defended the rights of an individual or minority to impose its religious views on a majority.

This is a majority now that is rapidly secularizing. While older generations remain religious and Christian, a recent study showed that only 16 percent of Americans said that religion is the “most important thing” in their life. For members of the millennial and Gen Z generations, nearly half identify with no religion.

The conservative Supreme Court bloc famously overturned abortion rights in Dobbs v. Jackson Women’s Health Organization. Now, their sights may be on Establishment Clause cases like Engel, Abington and Stone.

Last term, in Kennedy v. Bremerton School District, the Court began this erosion, ruling by a 6-3 majority in favor of the right of a public high school football coach to pray at a game in front of and with his players. 

Conservative states spent years passing restrictive abortion laws in the hope of getting a case to the Supreme Court to reverse Roe. Now, Texas has passed a plainly unconstitutional law Ten Commandments law. Sensing a majority is there, more states will probably pass laws bringing back some form of public-school prayers or posting of other religious displays.

As I recently pointed out, this court is not shying away from overturning past precedents it disagrees with. But even if Engel and Stone are not directly overturned, the Court will distinguish the new decisions by emphasizing free exercise rights of individuals over the collective right of a society not to have a minority establish a religion on them. For example, it may find a way to overturn Employment Division v. Smith, a 1990 decision rejecting claims by Native Americans that their use of peyote as part of a religious ceremony was not protected by the Free Exercise Clause. Overturning it is the perfect wedge to eroding the other older Establishment Clause decisions.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.