Russell Shaw" />

Four religious liberty cases to watch at the Supreme Court

The Supreme Court building is seen in Washington in 2021. (CNS photo/Leah Millis, Reuters)

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While most attention directed to the Supreme Court these days is focused on two issues — abortion and the choice of a successor to retiring Justice Stephen Breyer — it’s worth noting that the court now is weighing a cluster of cases that could significantly alter the relationship between church and state for years to come.

The four cases vary greatly in their specifics, but all involve challenges to government actions that the challengers say unfairly curtail their exercise of religious liberty. And at a deeper level, they raise the question of religion’s place in America — marginalized and thrust out of the cultural mainstream, or welcomed as a foundational institution of society?

The cases come from Maine, Massachusetts, Washington state and Texas. Three of them, and possibly all four, will be decided before the Supreme Court’s current term ends in late June or early July.

The case from Maine, where 143 of the 260 school districts lack public high schools, concerns a state program of tuition assistance to students to attend nonpublic schools of their choice, including religious ones. Two sets of parents are challenging the exclusion from the program of schools, which the state education department judges as “sectarian” because they teach the faith of the church that sponsors them.

A ruling by the 1st Circuit U.S. Court of Appeals upheld this exclusion. But in their brief to the Supreme Court, the parents call it unjust discrimination against families who “believe that a religious education is best for their child.” Its effect, they say, is to force them to “choose between a public benefit to which they are entitled and their right to send their child to a religious school.”

At the center of the dispute is a Supreme Court decision from two years ago in a case from Montana holding that the state could not exclude use of funds from a student aid program at a religious school simply because the school was church-sponsored. The parents in the Maine case (Carson v. Makin) seek to have that extended specifically to cover schools that give religious instruction according to the tenets of their sponsoring churches. With the Biden administration’s Justice Department arguing against the parents, the Supreme Court heard oral arguments in the case last December.

The Massachusetts case (Shurtleff v. Boston) involves refusal by the city of Boston to a Christian civic group called Camp Constitution to fly its flag on one of the city hall flag poles. Over a span of 12 years the city, treating the flag poles as “public forums” available to “all applicants,” had approved the flags of all 284 applicants, but when Camp Constitution leader Harold Shurtleff applied, the city said no because flying the group’s flag — white, with a red cross on a blue square in the upper left corner — might be taken as city endorsement of Christianity.

In previous decisions, the Supreme Court has generally ruled against restrictions placed on the expression of religious viewpoints in “public forums.” The city has defended its action in turning down Shurtleff’s flag on the grounds that its approval would transform private speech — the flag display — into government speech. It remains to be seen whether the Supreme Court will accept that in view of the city’s own designation of its flag poles as “public forums.” But lower courts have agreed with the city. The Supreme Court heard arguments in January.

In the Washington state case (Kennedy v. Bremerton School District), former public high school football coach Joseph Kennedy is contesting his firing for kneeling at midfield and saying a silent prayer by himself — a practice in which some of his players voluntarily joined. The 9th U.S. Circuit Court of Appeals ruled against Kennedy on the grounds that his position as a public school employee made his action a form of government speech..

Although earlier the Supreme Court turned down Kennedy’s request for a preliminary injunction, four of its members — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — called the 9th Circuit’s understanding of public school employees’ free speech rights “troubling.” In appealing to the court, Kennedy invokes his First Amendment rights of free speech and religious free exercise. The court heard the case argued in January.

The Texas case (Ramirez v. Collier) concerns an inmate named John Ramirez sentenced to death for murdering a convenience store worker in Corpus Christi in 2004. Ramirez wants his pastor to lay hands on him as well as praying aloud at the time of his execution. The state is willing to allow the pastor, Dana Moore, in the execution chamber but opposes the laying on of hands and oral prayer on security grounds. Ramirez claims this to be a free exercise violation.

The Supreme Court granted Ramirez’s petition for a stay of execution last September and heard oral arguments in November. The Ramirez case is one in a continuing series that have come before the Supreme Court lately concerning circumstances surrounding the death penalty, although not the penalty itself.

The court is likely to decide all four of these cases before Justice Breyer formally steps down, something he will do after the current term ends in early summer. President Joe Biden has said he will name a black woman to the position and is certain to choose a liberal, thereby leaving unchanged the court’s present ideological profile — usually described as six conservatives and three liberals, Breyer among them — and so almost ensuring that Breyer’s old seat on the court will remain in liberal hands for another 20 or 30 years.

During his 28 years as a justice, Breyer has had a mixed record on church-state cases and was a consistent pro-choice vote on abortion. “Breyer wrote the majority opinion in every major win for the abortion rights movement in the last two decades,” says law professor Mary Ziegler, author of a book on abortion and the law.

Russell Shaw is a contributing editor for Our Sunday Visitor.

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