Jul 09, 2018

Editor’s Note: President Donald Trump is scheduled to announce his replacement for Supreme Court Justice Anthony M. Kennedy tonight at 9. Kennedy has been a swing voter on many church-state issues, and his departure from the court could dramatically shift the balance. AU’s Legislative Department has prepared the following outline of what’s at stake in this important battle.

The separation of church and state is the linchpin of religious freedom, but Trump has shown little respect for this fundamental American value. We can’t afford to have a Supreme Court that does the same. It is important to ask whether the Supreme Court nominee will uphold language in the First Amendment that guarantees the separation of church and state. The Senate must reject any nominee who would undermine this foundational principle.

Religious freedom for all Americans hangs in the balance. Consider the following:

The separation of church and state ensures that religious exemptions are not used to harm others. Over the past several years, the Supreme Court has been asked to consider whether businesses and institutions can use religion to violate or obtain exemptions from laws that protect and provide benefits to others, particularly women and LGBTQ people. In Burwell v. Hobby Lobby, the court held that businesses could cite religion to refuse to follow a law requiring them to provide employees with insurance coverage for birth control. And Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided just a few weeks ago, involved a business that violated a state antidiscrimination law when it refused to serve a same-sex couple.

In Masterpiece Cakeshop, Kennedy observed, “[I]t is a general rule that [religious] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

More cases like these will make their way to the court. For example, this fall, the court will be asked to hear EEOC v. R.G. & G.R. Harris Funeral Homes, in which a funeral home claims a religious freedom right to violate the Civil Rights Act’s bar on sex discrimination in employment. Other cases may challenge Trump administration rules that create religious exemptions that put people’s access to basic health care at risk, or state laws that allow adoption and foster-care agencies to use religion to deny kids loving homes and vital services.

A long line of cases prohibit religious exemptions that result in harm to others, but the balance of the court could turn against this critical constitutional protection.

The separation of church and state ensures that taxpayer dollars aren’t used to build houses of worship or fund religious activities. In 2017, the Supreme Court ruled in Trinity Lutheran Church of Columbia v. Comer that the state of Missouri could not exclude a church from a taxpayer-funded grant program that pays to resurface playgrounds. This decision was unprecedented, as it held that a state must cut a check to a church under certain conditions. This upends the bedrock constitutional principle that we each get to decide for ourselves whether and how our money goes to support religion.

The decision was explicitly limited to the facts of the case and applies only to playground resurfacing. Some concurring justices, however, would have broadly extended the decision. And since the ruling, the case has been used to argue that the government should provide funding to rebuild houses of worship; that state constitutional provisions prohibiting private school vouchers should be nullified; and that the government must be required to give grants to foster-care providers that discriminate against Jewish, Catholic and LGBTQ families. The Supreme Court will likely hear a case in the coming years about the scope of Trinity Lutheran, and the constitutional limits on the use of taxpayer dollars hang in the balance. 

The separation of church and state ensures that public-school students should not be forced to pray in school. Because students in the public schools are impressionable and a captive audience, the Supreme Court has for more than five decades held that public schools must not sponsor prayer, promote religion or coerce students to participate in religious activities. Yet public schools across the country continue to violate the Constitution: There are currently cases brought by students and parents challenging the actions of public-school teachers who recite prayers in the classroom, public school officials who lead prayer at school events and coaches at public schools who tell players to pray in the locker room. In the last two school-prayer cases considered by the Supreme Court, Lee v. Weisman and Santa Fe Independent School District v. Doe, Kennedy sided with students and their families who objected to school-sponsored prayer. This core constitutional protection is now on the line. Students and their parents – not public schools – should determine whether and how to participate in religious activities. And no students should be made to feel like outsiders in their own public schools for not participating.

The separation of church and state ensures that public schools teach science and not religion in science classrooms. In Edwards v. Aguillard, the Supreme Court struck down a law that required public schools to teach creationism if they also taught evolution. The court has changed entirely since that ruling, and the balance of the court could now reverse this fundamental protection for religious freedom. The court could be required to rule on whether to allow teaching creationism or intelligent design in science class, teaching the Bible in a devotional manner or teaching history classes that present America as a “Christian nation.” To protect the religious freedom of all students and their parents, public schools must be neutral toward religion, neither promoting religion nor disparaging it.

The separation of church and state ensures that people of all faiths and people who are nonreligious are treated equally. The government may not favor the practice and values of a particular religion over other religions, or religion in general over nonreligion. Nor may the state show hostility to or disparage a particular religion, religion in general, or nonreligion. In Masterpiece Cakeshop, the Supreme Court ruled that the government must not make policy based on hostility to a religion. In that case, which involved perceived hostility to Christianity, the court explained that we cannot tolerate “even ‘subtle departures’” from religious neutrality. Yet, a few weeks later in Hawai’i v. Trump, the court was willing to ignore the blatant religious animus behind Trump’s Muslim ban. The divergence between the two cases – one going out of its way to label behavior as hostile to Christians, and the other going out of its way to dismiss Trump’s hostility to Muslims – is troubling. 

People should be able to go to court to challenge laws that violate the separation of church and state. The protections provided by the Constitution don’t mean much if you can’t get into court to enforce them. Over the last several decades, the Supreme Court had been chipping away at “taxpayer standing” – the rule that taxpayers can challenge government expenditures that support religion and violate church-state separation. In Hein v. Freedom From Religion Foundation, Kennedy wrote a concurrence rejecting arguments that taxpayer standing in church-state cases should be entirely abolished. A future court without Kennedy could rule differently.

As you can see, much is at stake. Please let your senators know that you expect the next Supreme Court justice to uphold separation of church and state.