Religious Liberty Wins Big in Supreme Court’s Historic Term

COMMENTARY: Besides Dobbs v. Jackson Women’s Health, the High Court upheld the First Amendment’s right to religious exercise and expression in four other important cases.

The US Supreme Court's spring slate featured a series of victories for religious freedom.
The US Supreme Court's spring slate featured a series of victories for religious freedom. (photo: Shutterstock)

As you may have noticed, the Supreme Court has been making history this term. I’m not just talking about Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health — which, in addition to benefiting countless pregnant women and unborn children, is a masterpiece in originalism, a method of judicial interpretation based on the meaning of the Constitution at the time it was adopted. We should also note that the Court upheld the First Amendment’s right to religious exercise and expression in four other important cases.  

Let’s start with Shurtleff v. Boston, in which the Court issued a resounding defense of the right of Christians to fly a flag in front of Boston’s City Hall — something that officials had outrageously banned them from doing. 

There are three flagpoles on the Boston City Hall Plaza. The city flies the American flag from the first pole (along with a banner that honors prisoners of war and soldiers missing in action) and the flag of the Commonwealth of Massachusetts from the second. On most days, the city’s own flag flies from the third pole. But for years Boston has permitted groups to hold ceremonies on the plaza during which participants may use it to raise a flag of their choosing for the duration of the ceremony.  

Over the course of 12 years, about 50 flags were flown at 284 ceremonies. Most were national flags of other countries, but some were associated with historical events like Juneteenth and the Revolutionary War, or causes like advocacy of the city’s LGBTQ community.  

Harold Shurtleff, director of Camp Constitution, made his request to fly a “Christian flag” that bears a red Latin cross. The commissioner of Boston’s Property Management Department claimed that flying the Christian flag would violate the Establishment Clause and so denied Shurtleff’s request. 

The Supreme Court unanimously ruled against the City of Boston. Justice Stephen Breyer, who retired at the end of the term, issued the opinion. “When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint.”  

In Ramirez v. Collier, the court struck down Texas’s categorical ban on the laying of hands and audible prayer during executions, ruling that it violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that protects the religious rights of inmates. 

The background is horrifying; it is hard to feel any sympathy for the man whose rights were upheld. John Ramirez stabbed and killed Pablo Castro, a father of nine and nighttime convenience store clerk in Corpus Christi, Texas. Ramirez was sentenced to death for Castro’s murder. In an emergency request to stay his execution, he asked that his pastor be allowed to lay hands on him and pray out loud during the execution. 

In its 8-1 decision, the Supreme Court ruled in favor of Ramirez. Chief Justice John Roberts, writing for the Court’s majority, observed that there had been a long history of allowing pastors to deliver prayers at executions and allowing them to “lay hands” on the individual being executed. He also noted that both the Federal Bureau of Prisons and other states have permitted this. Further, Texas had not shown a compelling interest for its blanket rule and that lesser restrictions such as regulating the volume of prayer would accomplish the same objectives. Roberts stressed that in interpreting such issues, the court “requires a case-specific consideration of the particular circumstances and claims.” 

Justice Clarence Thomas was the court’s lone dissenter. “Today, this Court should have denied equitable relief to a prisoner who has acted inequitably — as both the District Court and Court of Appeals did before us,” he wrote. “The evidence that demonstrates Ramirez is bringing abusive litigation to delay his execution also strongly suggests that he does not sincerely believe that his pastor needs to touch him in the execution chamber.”  

In Carson v. Makin, the Supreme Court decided that the state of Maine violated the Constitution by preventing families from using state aid to send children to schools that provide what it calls “sectarian” instruction. 

More than half of Maine’s school districts (143 out of 260) do not have a public high school. For years the state has operated a program whereby these school districts pay tuition, up to a statutory limit, for students to attend a public or private school. Some students use the aid to attend public schools or schools in nearby counties. Others use the aid to attend private schools. In 1981, following guidance from the state’s attorney general, the Maine Legislature passed a law that bars schools offering what the state calls a “sectarian” education from receiving program funds.  

According to Maine’s Department of Education, a school is “sectarian” if it “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” This past academic year, 10 of the 15 schools excluded as “sectarian” were Catholic. That is very disturbing — but now the Supreme Court has put a stop to such discrimination.  

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” explained Roberts for the 6-3 majority. The court rejected Maine’s claim that the public benefit it offered was a “free public education” and that just as its public schools were secular, Maine could require participating schools to be secular. “The benefit is tuition at a public or private school selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education,” wrote Roberts. He added that “it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent — roughly or otherwise — to that available in the Maine public schools.”  

Maine also tried to distinguish its “nonsectarian” restriction from those declared unconstitutional by claiming that it excludes schools not because of the religious identity of the schools but based on the religious use of public funds. Roberts responded that “any status-use distinction lacks a meaningful application not only in theory, but in practice as well. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”  

Finally, Kennedy v. Bremerton School District affirmed a public high school football coach’s right to pray during his personal time after games.  

Coach Joseph Kennedy was an assistant football coach at Bremerton High School in Bremerton, Washington. He is a devout Christian and felt compelled to “give thanks through prayer” at the end of each game. School officials claimed that allowing Kennedy to pray would be construed as their “endorsement” and a violation of the First Amendment’s Establishment Clause. After Kennedy refused to stop his practice of post-game thanksgiving, the school did not renew his coaching contract. 

“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” wrote Justice Neil Gorsuch for the court’s 6-3 majority. The key point here is that what a teacher or coach says that is unrelated to his or her duties counts as protected speech. “During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters — everything from checking sports scores on their phones to greeting friends and family in the stands,” Gorsuch pointed out.   

The Supreme Court also explained that the Free Exercise and Free Speech Clauses of the First Amendment work in tandem. “That the First Amendment doubly protects religious speech is no accident,” said Gorsuch. “It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.” He added that an Establishment Clause violation does not “automatically follow whenever a public school or other government entity ‘fails to censor’ private religious speech.” 

We are at a crossroads when it comes to the role of religion in America. Fortunately, this Supreme Court has demonstrated yet again its willingness to defend religious freedom — and to safeguard us against attempts by public officials to silence and harass believers. 

Andrea Picciotti-Bayer is the director of the Conscience Project and a legal analyst for EWTN News.