A Matter of InterpretationAlan E. Brownstein September/October 2022
When it comes to free exercise and establishment clause doctrine, has the Court delivered a triumph or a tragedy?
Illustrations by Jon Krause
Examining recent cases and doctrinal developments interpreting the free exercise clause and the establishment clause of the First Amendment reminds me of two lines from Shakespeare’s Macbeth. Macbeth himself states in the first act, “So foul and fair a day I have not seen.” More ominously, the three witches famously exclaim that “fair is foul, and foul is fair.”
What do these mixed messages of “fair and foul” have to do with constitutional decisions about religion? Haven’t the Supreme Court and lower courts recently been deciding cases in a way that is favorable toward religion? Since the Court’s misguided decision in Employment Division v. Smith1 in 1990, the federal courts provided little protection to religious liberty claimants challenging so-called neutral laws of general applicability. Only laws that targeted religion for discriminatory treatment would receive rigorous review. The current Court seems poised to overrule Smith and replace the anemic protection it provided to religious liberty with something more forceful.2
Also, the Court has dramatically revised its understanding of the establishment clause. Under older precedent, the establishment clause prohibited states from subsidizing religious institutions, such as religious schools, that provide secular services while furthering religious goals. Today the Court has held that such aid is not only permissible but that it violates the free exercise clause if religious institutions are denied access to financial support that is available to their secular counterparts.3
Moreover, the Court has formally recognized the ministerial exception, a doctrine that shields certain hiring decisions of religious institutions from the enforcement of civil rights laws.4 Further, the Court has expanded the scope of the ministerial exception beyond the hiring (and firing) of clergy, to include religious school teachers who teach theological tenets in the classroom.5
Finally, the Court has upheld stand-alone religious displays expressing majoritarian messages and majoritarian prayers during government activities, such as town board meetings.6
For some proponents of religious liberty, all of the above seems far more fair than foul. Where is there a problem with current changes in doctrine? The answer, unfortunately, is just about everywhere. And I write this as someone who has been advocating for, writing about, and working to support religious liberty for the past 30 years or more.
Coercion by Any Other Name
To start, in dismantling long-accepted establishment clause doctrine, the Court has not only eliminated restrictions on state aid to religious institutions, but it has also placed an initial stamp of approval on government involvement with religion that is intrinsically coercive to religious minorities and nonreligious individuals. A court committed to religious liberty would recognize this critical principle: Whenever government actors have substantial discretionary authority to award benefits to or impose sanctions on third parties, it is inherently coercive for that official while—or immediately before or after—performing their duties to direct, invite, or welcome individuals subject to their discretionary judgment to pray with them or to join in other religious activities. Whether we are talking about judges asking litigants and their attorneys to pray before a trial begins, or administrators evaluating eligibility for social services or welfare benefits asking potential beneficiaries to join them in prayer, or teachers offering prayers in a public school classroom, the link between discretion and coercion is unmistakable and chilling. Declining to pray carries the inherent risk of being denied benefits or being subject to sanctions.
However, this burden was not obvious to the Court in Town of Greece v. Galloway.7 In that case the Court held that it was not coercive for residents attending a town board meeting to petition their representatives on issues of importance to them to be told by invited clergy to stand, bow their heads, and join in a Christian prayer as a preamble to the meeting. Confronted with the challenge that residents attending the board meeting for public comment would naturally fear alienating the board members they were trying to influence by refusing to participate in such a prayer, the Court rejected their claim by disputing the social reality on which it was based. To the Court, standing while a prayer is expressed is a secular act, not an expression of religiosity, ignoring the religions for which standing is an intrinsic act of worship. Further, the Court reasoned, no one would be offended or even notice if residents left the room while the prayer was offered. (Anyone who believes that no one would notice or be offended if a person fails to stand and join in a religious or patriotic activity should talk to Colin Kaepernick.)
One can hope the holding of Town of Greece will be limited. But I see signs that the doctrinal seeds planted by the Court’s myopic failure to see coercion in this case are sprouting in other soil. For example, there is already a constitutional challenge being litigated against a judge asking attorneys and litigants to join in prayer before legal proceedings begin.8
The issue of intrinsic coercion is also an important aspect of Kennedy v. Bremerton School District,9 a case before the Court this term. The core question is whether it violates the establishment clause for a public high school football coach to offer prayers on the 50-yard line, joined by many kneeling players on the team, while he continues to be on duty with ongoing responsibilities.
There are important differences between Bremerton and Town of Greece. One may question, as I do, the Court’s contention in Town of Greece that standing while a prayer is offered is a secular act. But it would be absurd to extend this argument to kneeling while a prayer is offered. Americans do not kneel to honor their secular leaders. And while kneeling in some circumstances may be a form of secular protest, surely kneeling with others while prayers are expressed is recognized as part of religious worship. Further, there can be no serious question about whether players who failed to pray with their coach and teammates in the center of the field would be noticed.
These factual distinctions, while legally significant, should not distract us from the core constitutional concern raised by this case. High school coaches have extraordinary discretionary authority over student players. They determine who is on the team and whether they will have significant playing time. It is the intrinsic coercive force created by such discretionary authority that makes the coach’s conduct here so dangerous to religious liberty. Players will feel that they risk the coach’s displeasure and the consequence of decreased playing time or other manifestation of his or her discontent if they do not join the coach in prayer.
The Court has often recognized that students in public schools raise special establishment clause concerns that limit religious activities on school time on the school’s premises. Often this constitutional solicitude is justified by reference to the impressionability of public school students, in contrast to adults who are better able to resist religious coercion and imprimaturs by the state. The Court’s conclusion about special solicitude is sound and important, but while its concern about the susceptibility to indoctrination may be accurate for very young children, this argument is limited and cannot be extended too broadly. Focusing on the impressionability of students in contrast to adults suggests that religious coercion is problematic only if it is likely to succeed in altering religious behavior. That argument has to be wrong. Religious coercion is constitutionally impermissible whether it is successful in converting its victims or resisted to the death.
The reason students in public schools need special establishment clause protection is that they are subject to extraordinary discretionary authority exercised over their education and well-being by teachers, administrators, and coaches. Students alienate these authorities at their peril. If the Court rules in favor of the coach in the Bremerton case, it will be a significant step toward eroding the protection the establishment clause provides to public school students against religion coercion.10
The Court’s decision in American Legion v. American Humanist Association11 to uphold a cross as a public war memorial, albeit in a convoluted opinion, raises both religious liberty and equality concerns. While passive displays are less coercive than prayers to which community participants are welcomed, there is a coercive dimension to these promotions of religion. As the Court explained, I think correctly, in Engel v. Vitale,12 a case striking down state-directed prayer in public schools, such activities are coercive even when participation is formally voluntary. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”13
The undermining of religious equality values is even more apparent in these cases. In a religiously pluralistic society the decision by the state to promote the symbols and beliefs of only one or certain faiths involves a mixture of favoritism and discrimination. While earlier decisions recognized the constitutional infirmity of government messages endorsing preferred faiths and sending a message to the adherents of other religions or no religion that they are outsiders and disfavored members of the political community,14 the current Court seems far less concerned about religious endorsements.
These cases diminishing the scope and rigor of establishment clause constraints on government promotion of religion may reflect profound misunderstandings regarding the constitutional foundation of religious liberty and equality in our society. The current Court appears to view secular insensitivity or animosity toward religion as the primary if not exclusive threat to religious liberty. For a Court that claims to be committed to an originalist interpretation of the Constitution, that myopic vision is difficult to justify. As any student of constitutional history knows well, the source of the greatest threats to religious liberty at the time of the adoption of the Constitution and prior decades of controversy was religion itself.15
Another potentially egregious error is the Court’s apparent comfort with entrusting decisions about religion to government decision makers. Religious debates about the truth and value of religious tenets among private actors, theologians, or competing proselytizers in public fora are valid and protected. When these debates occur in the legislature or among executive officials to determine which faiths are worthy of support, the red line of separation identified by Madison and Jefferson is transgressed.
The Court’s willingness to permit, and even require, government funding of religious institutions also moves us into treacherous legal and cultural terrain. This new interpretation of the religion clauses effectively rejects any concern for the taxpayer liberty of those who conscientiously oppose funding faiths other than their own. More important, the now-ignored constraints on public subsidies of religion served important purposes, not the least of which was guaranteeing the independence of religious institutions. The government typically asserts some measure of control over whatever it funds. Even if such formal controls are modest, substantial subsidies create dependency relationships that may well undermine the autonomy of religious institutions relying on the state for financial support.
One possible response to these concerns argues that rigorously enforced free exercise doctrine should protect religious institutions from any conditions accompanying government funding requiring them to violate their faith. Recent cases suggest that many justices on the Court may be amenable to such a position.16 Here again, however, exemptions for religious institutions from funding requirements that their secular counterparts must obey raise a host of problems.
First, there is a logical conundrum. A key justification for requiring the funding of religious institutions when comparable secular institutions receive financial support is that religious institutions are sufficiently similar to state-subsidized secular institutions to justify their receiving equal public support. But the argument that religious institutions should be exempt from funding conditions that their secular counterparts must obey rests on the contrary foundation—that religious institutions are so distinct from their secular counterparts that they should be treated differently. The inconsistency is hard to avoid. Religious institutions should be equated with secular institutions for state funding purposes, but they should be distinguished from secular institutions in receiving exemptions from regulations accompanying state support. These conflicting premises are particularly blatant when the exemptions free religious institutions from costs that secular institutions must bear.
Second, some funding conditions that religious institutions challenge are anti-discrimination regulations that prohibit the institutional recipients of government subsidies from discriminating in the provision of services and the hiring of staff—even if their faith requires them to do so. While the most prominent of these challenges involve discrimination against members of the LGBTQ community,17 some cases argue for, and the same principle supports, discrimination by tax-subsidized institutions against otherwise eligible beneficiaries because they hold the wrong religious beliefs.18 By the sheer weight of numbers, minority faiths will be disproportionately disadvantaged by such exemptions from anti-discrimination requirements.
Third, exemptions for state-funded religious institutions risk distorting the marketplace of ideas in violation of the free speech clause of the First Amendment. A long line of Supreme Court authority19 holds that religion is a viewpoint of expression. Thus, discrimination against religion—in denying religious groups access to public property open to nonreligious groups, for example—constitutes viewpoint discrimination, which requires strict scrutiny review.20 The prohibition against viewpoint discrimination, of course, is not a one-way rachet. If discrimination against religion is viewpoint discrimination invoking strict scrutiny, then discrimination in favor of religion is equally viewpoint discriminatory requiring the same rigorous review.
I take it as a given that many religious institutions are expressive in nature. Certainly this is true of religious schools. Religion is a voice in our society, and religious institutions communicate and espouse their beliefs in myriad ways. This should mean that discrimination in favor of expressive religious institutions and against their secular counterparts constitutes viewpoint discrimination. Accordingly, it is viewpoint discrimination to relieve religious schools of the duty to comply with burdensome regulations that nonreligious schools must obey. If we turned the example around and relieved secular schools from burdensome regulations that religious schools must obey, would anyone doubt that this difference in treatment constituted viewpoint discrimination under the Court’s precedents?
This free speech concern applies to both government-funded and privately supported religious institutions. Under an establishment clause regime sharply restricting the state’s funding of religious institutions, however, the viewpoint favoritism created by religious exemptions is offset to some meaningful extent by the same institutions’ ineligibility for government support. Under an establishment clause regime in which government funding of religious institutions is not constitutionally limited—a regime in which the same religious institution can demand both equal funding from the state and exemptions from regulation by the state—accommodating expressive religious institutions becomes much more difficult to justify.
Exempting tax-subsidized religious institutions from burdensome regulations under this framework does more than protect religion. It privileges religion. Religious institutions can avoid costs, reserve state-subsidized jobs and services for their own communities, and have their voices relatively magnified in public discourse. These are significant secular benefits. One consequence of a legal regime that provides special secular benefits to successful free exercise claimants is that it creates incentives to assert sham claims for exemptions. Increases in sham claims may force government administrators and courts to engage in more rigorous evaluations of free exercise assertions than the anemic sincerity tests that are currently employed to identify those deserving accommodation. Sincerity is a sufficient filter for sham claims when the religious liberty practice at issue has no secular value, such as abiding by kosher dietary restrictions. It is of far less utility in cases in which exemptions provide secular advantages.
Finally, there are cultural consequences to be considered. American history demonstrates that over time constitutional law will reflect our society’s cultural understandings, attitudes, and commitments. The privileging of religion creates cultural backlash against religious liberty. Those who experience relative disadvantagement or outright discrimination may come to resent the basic idea of religious liberty accommodations. And an increase in sham claims may convince many people that exemption claims are legal gamesmanship undeserving of respect. The cause of religious liberty has not been furthered by the flippant willingness of those without religious conviction to assert religious liberty claims against vaccine mandates. Ultimately, without cultural support, religious liberty becomes vulnerable to constitutional change and more limited protection.
The words of Macbeth ring true today: “So foul and fair a day I have not seen.”
1 494 U.S. 872 (1990).
2 Fulton v. City of Philadelphia, 593 U.S. ___ (2021).
3 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017); Espinoza v. Montana Dept. of Revenue, 591 U.S ___ (2020). The Court decided Carson v. Makin, 596 U.S. _____ (2022), on June 21, 2022, after this articles was written, striking down a Maine statute denying public funding to sectarian schools. In doing so, it held that the state could not refuse to fund private institutions that intended to use public resources for religious activities.
4 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).
5 Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020).
6 Town of Greece v. Galloway, 572 U.S. 565 (2014).
8 See Freedom From Religion Foundation v. Wayne Mack, Case No. 21-20729 (Fifth Circuit, 2021).
9 991 F.3rd 1004 (Ninth Circuit, 2021) cert. granted 142 S. Ct. 857 (2022).
10 The Court decided Kennedy v. Bremerton School District, 597 U.S.___ (2022) on June 27, 2022, after this article was written. It ruled in favor of Coach Kennedy, cavalierly dismissing the school district’s concerns about intrinsic and implicit coercion in the public school context.
11 588 U.S. ___ (2019).
12 370 U.S. 421 (1962).
13 Ibid. at 431.
14 See, e.g., McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005)
15 See Steven Waldman, Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom (New York: HarperCollins 2019).
16 See Fulton v. City of Philadelphia, 593 U.S. ___ (2021).
18 See e.g., Rutan-Ram v. Tennessee Department of Children’s Services (Chancery Court, Tennessee, April 8, 2022).
19 See, e.g., Lamb’s Chapel v. Center Moriches Union Free School District, 508 US 384 (1993); Good News Club v. Milford Central School, 533 U.S. 98 (2001).
Article Author: Alan E. Brownstein
Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law Review, Cornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.