A “Revolutionized” Supreme Court Term
Steven K. Green
The Supreme Court’s Term in 1991-1992 promised to be highly consequential. Two hot-button issues were on the Court’s docket — abortion and school prayer — and in both cases litigants and amici asked the justices to overturn established precedent. In Planned Parenthood v. Casey, that precedent was, of course, Roe v. Wade with its famous trimester analysis; in Lee v. Wiseman the precedent was Lemon v. Kurtzman with its infamous three-pronged test for analyzing Establishment Clause challenges. As we know from history, a majority of justices in both cases declined the invitation to disrupt constitutional doctrine. In Casey, the three-justice plurality modified Roe’s trimester approach but retained the core constitutional right of reproductive freedom based on notions of personal liberty. In Lee, the majority avoided ruling on Lemon’s doctrinal viability, holding instead that prayers during graduation ceremonies placed coercive pressure on schoolchildren to participate in the religious exercises. Three justices — all appointed by Republican presidents — were key in the outcomes: Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter. As the three justices wrote in their joint opinion in Casey, overturning settled precedent would not only undermine the notion of stare decisis (“let the decision stand”), it would also come at a “cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.” A willing and unnecessary rejection of settled law, they opined, “would be nothing less than a breach of faith” with the American people and lead to “[t]he country’s loss of confidence in the Judiciary” (Casey, at 867-869).
Fast forward thirty years to the Court’s just-completed term, and in the words of that great American philosopher Yogi Berra, it was “deja vu all over again.” In new challenges to abortion services and school prayer restrictions, litigants and their amici asked the Court to overturn settled precedent — again, Roe and Lemon. This time they succeeded in their quests. In Dobbs v. Jackson Women’s Health Organization, clinic operators challenged Mississippi’s ban on abortions after 15 weeks of pregnancy (in contrast to the Casey rule of approximately 24 weeks). However, it was clear that the constitutional right to an abortion itself was at stake, and the end to Roe and Casey came abruptly and unmercifully, with Justice Samuel Alito declaring “we hold that Roe and Casey must be overruled” because its “reasoning was exceptionally weak” and was “egregiously wrong” (Dobbs, at 2242-2243). In Kennedy v. Bremerton School District, the Court considered whether public school administrators could rely on the Establishment Clause to prohibit a football coach from praying on the 50-yard line of a football field at the immediate conclusion of a game or whether the coach had a free speech and free exercise right to engage in “private” prayer. A 6-3 majority sided with the coach. In contrast to Roe, the demise of the Lemon test, announced in Justice Neil Gorsuch’s opinion (with an assist a week earlier from Chief Justice John Roberts in Carson v. Makin) came more through neglect rather than via a fatal blow, but Lemon was no less dead: it was already “apparent,” Justice Gorsuch wrote, “that this Court long ago abandoned Lemon and its endorsement test offshoot.”
As in Dobbs, more was at stake in the two Religion Clause cases than the specific challenges (or even the overturning of Lemon). In addition, the litigants invited the justices to expand on notions of free exercise burdens while further eroding notions of non-establishment of religion. In Kennedy, the justices complied, holding that the school district had targeted Coach Kennedy for praying during a “private” moment during a school event, all but ignoring sixty years of precedent documenting concerns about the coercive environment of public schools. The holding opens the door for other school employees — teachers, aides, staff — to claim that their faith requires them to pray at a particular time and place (e.g., a classroom during instructional time) at moments when they are not actively teaching, even though students are present. To deny them this “right” is to discriminate against religion. The issue in Carson, by contrast, was whether Maine could refuse to provide tuition payments for students to attend private religious schools when it did so for private secular schooling. Sidestepping another body of Establishment Clause jurisprudence (i.e., the “no-funding rule”), the Court majority ruled that Maine had discriminated against religion by refusing to fund religious education. As a result, the no-funding rule announced in Everson v. Board of Education seventy-five years ago is effectively dead; not only may the state permissibly fund most forms of religious activity under a program that is neutral and generally available, in many instances it now must.
The significance of Dobbs, Kennedy, and Carson is not limited to the fact that the conservative majority overturned fifty-years of precedent in two important areas of constitutional law. Another similarity shared by the three cases is an obvious one: for years, religious conservatives (evangelical Protestants and Catholics) have been the leading opponents of abortion rights and church-state separation, and they have been dogged in their patient determination to overturn both, particularly in litigation before the courts. I have been involved in amicus work on church-state matters at the Supreme Court and in lower courts for over 30 years, and I can attest to the persistence of conservative religious legal organizations in raising legal arguments that, over time, have found a receptive audience among judicial conservatives. Their influence is evident in the number of citations that their amicus briefs have received in the opinions of members of the Court. Particularly with issues arising under the Religion Clauses, groups such as the Becket Fund, Alliance Defending Freedom, First Liberty Institute, and Liberty Counsel, among others, have successfully advanced the theory that to enforce the Establishment Clause by restricting religious access to government funding, government’s use of religious discourse and symbolism, or the religious activities of public employees amounts to discrimination against religion. The same discrimination argument has apparently succeeded when it comes to whether religious entities and people voicing religious objections should adhere to otherwise neutral regulations concerning public accommodations, health insurance coverage, social services access, or COVID restrictions on social gathering. And finally with respect to abortion access, religious conservatives have garnered support for their argument that personhood (or ensoulment) exists at conception, such that it is entitled to legal protection. As mainstream media has only recently noticed, religious claimants are on a roll before the courts.
Still another similarity among the three holdings, and one of legal significance, is the analytical approach the conservative majority has adopted to resolve these constitutional issues. The justices have made clear in these holdings that they will look to “historical practices and understandings” to determine whether a right exists and the meaning of that right. For notions of Due Process Liberty — the basis for the right to abortion — the Court had previously said that it will consider whether an unenumerated right was so “deeply rooted in our traditions and history” as to be deemed “fundamental” (See Washington v. Glucksburg). The salient issue was what level of generality or specificity to apply when considering that “deeply rooted” interest or right; as the justices struggled with in Obergefell v. Hodges, was the interest at stake “marriage” or “gay marriage?” For the majority in Dobbs, the interest was not “bodily autonomy” or “decisional autonomy,” but abortion per se. The majority found that abortion was not one of those protected interests according to our history and traditions.
A parallel exists with the conservative majority’s evolving approach to the Establishment Clause. Although the justices have looked to history since 1947 to inform understandings of the purposes of the Religion Clauses, until recently history has served as a guide, not a determinant. In a 2014 decision upholding sectarian prayers at city council meetings, however, the majority relied on a “historical practices and understandings” test rather than applying any of its previous analytical tests. As Justice Kennedy wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change” (Town of Greece v. Galloway). Since then, the “historical practices and understandings” approach, which aligns with the “originalist” inclinations of several of the justices, has come to dominate adjudications under the Establishment Clause. Court majorities referenced historical authority to authorize the government’s use of inherently religious symbols and to allow tax credits for tuition payments at religious schools, with the Court in the former instance commending its “more modest approach” that “looks to history for guidance” rather than any analytical tests. (American Legion v. American Humanist Association). In both Carson and Kennedy the majority relied on history to assert that there was no longstanding tradition against funding religious schooling and suggested that a “historical practices and understandings” approach could also be used to resolve school prayer disputes.
The problems with judicial reliance on history are many. As Justice Sotomayor commented in her Kennedy dissent, “problems with elevating history and tradition over purpose and precedent are well documented” and the approach “offers essentially no guidance for school administrators.” All three holdings demonstrate how “historical practices and understandings” can be manipulated. What point in history becomes the referent point and how does one determine an original “meaning” or “understanding” (which assumes there was a consensus or dominant view)? In Dobbs, it was not at the time of the Founding, when no states (nor the common law) outlawed abortion before “quickening,” which was equivalent to the first trimester in Roe. Rather, the historical referent was around the time of the adoption of the Fourteenth Amendment when many states, but not all, began to outlaw all abortions (Justice Alito blithely claimed that just because states had not outlawed all abortions earlier did not mean that they could not do so but he never explained why that omission did not represent an early understanding). Apparently, the relevance of the 1860s for historical reference is due to the adoption of the due process liberty provision of the Fourteenth Amendment, but several states enacted full abortion bans prior to that time. Even then, the liberty provision for the Due Process Clause was not seen as having a substantive component until 1925. For Carson (relying on Espinoza v. Montana Department of Revenue), the relevant historical point was at the Founding or shortly thereafter when cities and states occasionally funded religious schooling. But that argument overlooks several salient points: at that time, “public” schooling did not exist and all schooling had strong religious components; public funding of any education was minimal and not systematic; and once states started establishing public school systems in the 1820s, they began banning funding of sectarian schooling. With that ambiguous record, it is difficult to arrive at a “historical practice or understanding.” And that difficulty grows when one considers using history to guide our understandings of the religious practices in the public schools based on the common practice during the nineteenth century of “nonsectarian” prayer and Bible reading (the Protestant King James version) in the schools which discriminated against Catholic and Jewish students.
So where do this term’s holdings leave matters? For abortion, the majority has washed its hands of oversight responsibility, apparently content to allow state legislators to rely on their personal religious sentiments about when life begins. In the Religion Clause area, it is clear that the Free Exercise Clause is ascendant — or at least conceptions of what constitutes a burden on religion or discrimination against religion — at the expense of Establishment Clause values. As Justice Sotomayor remarked in her Carson dissent, “[t]he Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses.” In so doing, she continued, the conservative majority has “revolutionized Free Exercise doctrine.” (Carson, 2014, 2013). ♦
Steven K. Green is the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University in Salem, Oregon. He is the author of six books and over forty scholarly articles and chapters on church-state matters, and he regularly collaborates on amicus curiae briefs at the US Supreme Court.
Green, Steven K. “A ‘Revolutionized’ Supreme Court Term.” Canopy Forum, July 29, 2022. https://canopyforum.org/2022/07/29/a-revolutionized-supreme-court-term/.