Washington Education Watch, July, 2019

Supreme Court Moves Slowly to Enhance Religious Freedom?

By John Mitchell

When the Supreme Court returns to work in October, they will be looking at religious liberty issues affecting public schools through a slightly different legal lens than in the past. 

One of the last cases that the court ruled on to close out their 2018-19 session was American Legion v. American Humanist Association.  In this important religious liberty case the Court ruled that a 32-foot cross erected in 1918 as a memorial to deceased World War I veterans that is located in the middle of a highway in Bladensburg, Maryland, could remain, and does not violate the Establishment Clause of the US Constitution. CEAI joined with two other Christian organizations to file a friend of the court brief in support of permitting  the cross to remain.

The Establishment Clause, which is in the first Amendment of the Constitution, reads:
“Congress shall make no law respecting an establishment of religion, …”

It is followed by the equally important Free Exercise Clause which adds:
“or prohibiting the free exercise thereof…”

These two requirements are at times in tension with each other. 

Justice Alito, writing the majority 7-2 opinion said, “The Cross has also acquired historical importance with the passage of time, reminding the townspeople of the deeds and sacrifices of their predecessors as it stands among memorials to veterans of later wars. Its historical significance goes far beyond establishing religion.” 

The Bladensburg Cross case is important to those who work in the public schools because it weakened a legal standard called the Lemon Test. The Lemon Test  arose out of a 1971 case, Lemon v Kurtzman, and has been used since then as the standard to determine if government actions, including public school programs, comply with the Establishment Clause.

The three conditions of the “Lemon Test” are:

1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and,
3. The statute must not foster an excessive government entanglement with religion.

Justices and Roberts, Alito, Breyer and Kavanaugh all agreed that, “If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it.” In separate concurring opinions Justices Gorsuch and Thomas said the Lemon Test should no longer be used. So, six Justices, a clear majority of the Court, indicated that the Lemon Test will no longer be the automatic go-to standard. 

Travis Weber, Vice President for Policy and Director of the Center for Religious Liberty at Family Research Council, writing for SCOTUSblog said, 

For school officials, this decision should be a welcome development. It should now be far more difficult for them to be sued under Lemon, particularly when they can claim that the displays or ceremonies in question have historical significance. To the extent that Lemon still applies, it is most likely to be invoked in cases involving government financial support for religious schools. But other free exercise issues currently under review by the court may soon erode whatever bite Lemon still has in that arena.

The “other free exercise issues under review by the court,” that Weber refers to in the quote above, are three cases involving statutes in Montana, Maine, and Washington that prohibit funding from tuition-tax credits to be used by parents to send their children to religious schools. The Supreme Court recently agreed to hear the Montana case in their upcoming session and the Maine and Washington cases will also most probably find their way to the Court. These cases represent situations in which the Court may rule that prohibiting a parent with faith from using tuition tax credits to send their children to a private religious school violates the Free Exercise Clause. 

These three cases follow on the 2017 Trinity Lutheran Church v. Comer decision of the Court that allowed a Lutheran preschool to take advantage of a Missouri state law that gave scrap tire rubber to institutions wanting to build playgrounds. It was thought at the time that this decision might be the first of many rollbacks of the so-called “Blaine Amendments.” Blaine Amendments were passed in the 1800s to prevent the spread of the Catholic faith though public support of Catholic schools and are present in 37 state constitutions. They prohibit parents from using tuition tax credits to send their children to religious schools. The Institute for Justice is a great source for more information about the Blaine amendments. 

Of course, the presence of Blaine Amendments and the Lemon Test does not hinder the Holy Spirit’s work in the hearts of individuals. Even those who live in countries with the most severe repression of religious belief are not too far from the saving hand of the Lord. Indeed, the Lord delights in showing that truth cannot be quenched by governments or rulers (Psalm 2).

It would be a breath of fresh air for our country to allow all citizens, including students and teachers in public schools, to speak freely about their personal religious beliefs. It would also be enlightening for schools to acknowledge the historical impact of religions, including Christianity, on the shaping of America and the course of World History. The line should be drawn at coercing or compelling faith. Expressing one’s personal beliefs or accurately relating the impact of religion on history should be protected, never prohibited.