Religious Liberty Wins at the Supreme Court

It goes without saying that the Supreme Court’s dramatic reversal of Roe last week catapults this year’s slate of cases into the historic tier of terms. No issue is more fundamental than life.

But with most of the attention centered on Dobbs and Roe, it’s easy to overlook some other significant and consequential cases that the High Court addressed concerning religious freedom.

When the Supreme Court affirmed Coach Kennedy’s right to pray silently on the 50-yard line, they actually empowered and encouraged all praying Americans. That’s because for the last 60 years, beginning with banning voluntary prayer in schools, the Christian faithful in this country have been discouraged from publicly expressing their deeply held convictions.

Let’s be clear: Court rulings have had a chilling effect on Christians. Not wanting to offend or do anything illegal, many have simply demurred and deferred when it comes to public prayer. Six justices suggested those concerns were unfounded.

For the good of the record, beginning with the Dobbs’ case, let’s review and summarize some highlights of this past term – and what to look forward to in the next:

Dobbs v. Jackson Women’s Health Organization – By a 6-3 vote, the justices upheld the constitutionality of a 2018 Mississippi law prohibiting abortions after 15 weeks gestation. In doing so, 5 justices deemed it necessary to overturn Roe v. Wade and Planned Parenthood v. Casey, both of which prohibited abortions prior to viability. Chief Justice John Roberts, although voting to uphold the Mississippi law, did not feel it necessary to overturn Roe to do so, but would have left that ultimate question for a future case. But the five conservative justices who felt Roe was “egregiously wrong from the start” – Alito, Thomas, Kavanaugh, Barrett and Gorsuch – joined together to send Roe to the ash heap of history.

Kennedy v. Bremerton School District – In a 6-3 vote, the high court ruled that a public high school in Washington state violated Coach Joe Kennedy’s rights when it disciplined him – and ultimately refused to re-hire him – for taking a knee and praying quietly at the 50-yard line after football games.

The majority opinion, written by Justice Neil Gorsuch, rejected the school district’s argument that the First Amendment’s “Establishment Clause” required it to prohibit the coach from praying when and where players and students might see him. The coach’s prayer was private and not coercive, according to the majority.

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s,” Gorsuch wrote. “Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

Carson v. Makin – In another 6-3 case, the court ruled in a case from Maine that the government cannot create a tuition assistance program for families to send their children to private schools but prohibit such funds from being used at religious schools.

Maine is a rural state, with a small and widely dispersed population, and some of its public school districts do not have secondary schools, which include middle schools and high schools. To fill that gap for parents, the state has conducted a tuition-assistance program for decades that provides funds for parents to send their children to private secondary schools where no public ones exist. The state law, however, excludes such funds being used to pay for “sectarian” schools.

That exclusion, the majority opinion written by Chief Justice John Roberts ruled, violated the First Amendment.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.”

Shurtleff v. Boston – In a unanimous decision, the Supreme Court ruled that in 2017, the City of Boston’s refusal to allow a civic group called Camp Constitution, and its director, Harold Shurtleff, to fly a Christian flag at its event held on city property constituted viewpoint discrimination.

In the decision written by Justice Breyer, the court ruled that the city created a forum for public groups to raise special flags for their events held on government property. Having done so, it couldn’t pick and choose which group’s flags (and the messages those flags conveyed) it would allow. In fact, the Christian flag was the first flag it had ever denied, and the city admitted it didn’t want a religious message conveyed.

“Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise ‘promoted a specific religion,’ Breyer wrote. “Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

NFIB v. OSHA – OSHA Vaccine Mandate – On January 13, 2022, the U.S. Supreme Court, in a 6-3 opinion, issued an order “staying” (i.e., blocking) the OSHA COVID-19 vaccine mandate from taking effect. The mandate, which applied to private employers with at least 100 employees – covering approximately 84 million American workers – required either proof of vaccination or weekly COVID testing and mask-wearing.

The majority ruled that OSHA’s mandate, called an “Emergency Temporary Standard” or ETS, exceeded the scope of OSHA’s authority granted to it by Congress.

“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense,” the court’s unsigned opinion reads. “This is no ‘everyday exercise of federal power.’ … It is instead a significant encroachment into the lives—and health—of a vast number of employees.”

Following the Supreme Court’s ruling, OSHA announced that it was temporarily scrapping the mandate. It has not revised or renewed its efforts to issue another mandate.

303 Creative LLC v. Elenis – The U.S. Supreme Court has announced that in its next term beginning in October, it will hear the religious freedom/free speech case from Colorado involving a Denver-area graphic designer and wedding website business owner named Lorie Smith, a Christian.

Lorie wants to limit her clientele to opposite-sex couples because of her Christian beliefs about marriage, but is vulnerable to potential legal charges of discriminating against same-sex couples under the same state law used to persecute baker Jack Phillips before (and after) his Supreme Court victory in 2018.

Lorie challenged the Colorado anti-discrimination law as violating her First Amendment freedoms but lost in two lower federal courts. The mere fact that the high court has agreed to hear her case is encouraging, indicating that at least four justices already suspect the lower courts decided the case incorrectly. And the current makeup of the Supreme Court has strongly favored religious freedom.

All of this is very good news for everyone, but Christians should especially be encouraged. I hope you’ll join me in giving thanks to the Lord for these outcomes – and continuing to pray for all those impacted by these rulings.