Please join these experts as they review religious liberty at the Supreme Court in 2022.
Prof. Mark L. Rienzi, President & CEO, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University
Moderator: Prof. William L. Saunders, Professor, The Catholic University of America; Co-Director of the Center for Religious Liberty, and Fellow, The Institute for Human Ecology
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Chayila Kleist: Welcome to The Federalist Society's webinar call. Today, August 11, 2022, we discuss "Religious Liberty at the Supreme Court." My name is Chayila Kleist, and I'm Assistant Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, and The Federalist Society takes no position on particular legal or public policy issues.
Today we are fortunate to have with us as our moderator Professor William Saunders, a lawyer at the Catholic University of America who is co-director of the Center of Religious Liberty at the Columbus School of Law and a fellow at the Institute for Human Ecology. I'll leave it to him to introduce our other speaker. Throughout this panel, if you have any questions, please submit them through the question-and-answer feature at the bottom of your webinar so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Professor Saunders, the floor is yours.
Prof. William L Saunders: Welcome everyone. Glad to have you with us. I'm looking forward to this discussion with Mark Rienzi. He's a graduate of the Harvard Law School and is a full professor at Catholic University Columbus School of Law. He is also the President of the Becket Fund for Religious Liberty, and this podcast today is all about religious liberty. And the Becket Fund has been involved as amicus in these various cases, so Professor Rienzi has a close-up knowledge of the cases. As was mentioned, Mark is co-director of the Center for Religious Liberty.
So let's get started by -- I'll just mention the cases we're going to discuss today. You're free, in question and answers, to ask about another case if there's one that interests you. The ones that we think should be most relevant today are four cases. And they kind of, in my opinion, kind of build like a symphony orchestra concert builds and builds, really, to a crescendo, which is the Bremerton v. Kennedy case, which is the last case of the term.
But, of the four cases we're going to discuss, they start with Ramirez v. Collier, which was decided in March of this year, followed by Shurtleff v. City of Boston, which was decided in May. And then, actually, I'll just mention briefly, Ramirez was 8-1, with Roberts writing the opinion. Shurtleff was 9-0, although there were three of the Justices -- Alito, Thomas and Gorsuch concurred in the judgment, but it was 9-0 in favor of religious liberty in that case.
Then there was Carson v. Makin on June 21. And it had to do with a school district and whether a religious school in a school district could receive funding from the state under a special state program for districts that did not have public schools. It was a 6-3 decision, with Chief Justice Roberts writing for the six in the majority. And the dissenters were those who are traditionally called the liberals on the court: Breyer, Sotomayor, and Kagan. That was June 21, and then, as I mentioned, the kind of crescendo of Kennedy v. Bremerton on June 27.
For the lawyers listening, and Supreme Court watchers, you'll know that the Supreme Court usually saves its biggest, in some ways biggest, or most controversial or most -- I suppose most controversial is the best way to put it -- those cases until the very end of the term. And you will know that one of those cases was Dobbs. And there were other cases. But one of them was Kennedy v. Bremerton, decided on June 27. It had to do with a coach who was praying on the sidelines after a game, and whether that violated the Establishment Clause or was permitted under Free Exercise.
And it also impacted this case, which all lawyers will remember, which is the Lemon standard on religion. And it was a 6-3 opinion, with Roberts, again, writing for the majority, and the three "liberals" in dissent. So that's just a kind of quick overview: Ramirez, Shurtleff, Carson v. Makin, and then Kennedy v. Bremerton. And I want to just say, myself, as I hand it over to Mark, that I think it was a great term for advancing religious liberty. But I’ll turn it over to Mark to go into these cases in more detail. And then we're going to open it up for questions for you guys in about 20, 25 minutes. So we're happy to answer anything you want to ask. Mark?
Prof. Mark L. Rienzi: Great. Happy to do it, Bill. And happy to be here to talk about these cases. So let me start with the first one you mentioned, Ramirez v. Collier. This is a case that arose originally on the Supreme Court's emergency docket. It's a death penalty case, and it's about a prisoner who was going to be put to death in Texas, but who asked to have prayer, he asked to have the accompaniment of his clergy to pray over him and lay hands on him at the time of execution. And the question in the case is, well, Texas was refusing to allow that, and does Ramirez have a religious liberty right?
The particular law they used was RLUIPA, the Religious Land Use and Institutionalized Persons Act. Does he have a right under that act, or under the Free Exercise Clause to have the accompaniment of clergy at the time of his execution? It's actually an issue that has bubbled up on the Court's emergency docket a handful of times over the past three or four years. But this time the Court did something relatively new, which is, instead of deciding the issue on the emergency docket, it did what I've been calling its rocket-docket move of it took the case and it gave the guy a quick stay, but it said, "Let's have a really fast merits process."
So they set his brief due date for some very, very near term, like, five or ten days after the cert grant, and they set the oral argument up for a couple weeks later than that. So they really accelerated the case. And I think the reason they did that is that they wanted to dig into it and to get into the substance of it with a little bit more meat and time than they would on the emergency path. So they did that.
And, in the end, the Court issues a really strong 8-1 opinion, written by Chief Justice Roberts, saying that, look, the condemned prisoner does have a religious liberty right to the presence of his pastor and to audible prayer and laying on hands of his pastor at the time of his death, unless the government can satisfy its test under the standard that Congress set forth for it, which is the government's got to prove there's a compelling interest, and denying the religious exercise is the least restrictive means of achieving that interest.
And what the Court did was it looked at history and it said, look, we've got a long history of clergy essentially accompanying people right up to the moment of death, whether it's at the gallows or just before the electric chair, before firing squads; there's a long, rich history of that And lots of other prison systems across the country do allow this type of prayer with your pastor, just before getting executed, and so that Texas had to come forward with some evidence or some reason to believe that it would be dangerous or problematic to have this happen, and that Texas hadn't come forward with anything.
And so, ultimately, it's a strong decision for religious liberty. The principle it lays out is one that I think will be useful in many areas. It will be useful in the prison context, useful in many other areas, too, when the government's supposed to pass strict scrutiny and all of these other governments around them have found a way to allow a religious exercise and still achieve their interests. Obviously, prisons have very important interests in safety. That's an important interest. But all of the other prison systems in the country, including the feds, seem to be able to both allow prayer to the condemned and protect safety.
And, given that Texas did not have strong arguments or evidence for why that couldn't be done in Texas, the Court said, "You've failed the test. You can't execute the guy unless you allow him to have the prayer." So that was Ramirez v. Collier. Again, that was one that nobody knew about at this time last summer -- well, maybe around this time we started to. No one knew in the preceding June that case was going to get decided last year. It really came up on the emergency docket, got moved over to the merits docket and decided relatively quickly.
Let me shift from that death-penalty case to the three other cases which I think actually fit together pretty well. Shurtleff v. City of Boston, which is the case about the flagpole in Boston -- the city of Boston allows private groups to run their own private flags up one of the flagpoles on City Hall Plaza, and they'd allowed, I think, 270-something people. Submit the application, the city says yes. Submit the application, the city says yes. Everybody's been able to fly their flag up there. The city allowed everybody to do it.
The one thing that made them say, "No we can't" was somebody said, "Well I want to fly a Christian flag with a Christian cross on it" And then the city said, "Well, maybe that's too much of a church and state thing, so it looks like we're endorsing religion." So in Boston, it was any flag you want, essentially, except a religious flag, with the government thinking we've got to keep religion out.
In Carson v. Makin, that was a case that arose from Maine about a Maine government program that said, look, there are some places in Maine that are quite rural, and where it doesn't make sense for us to build a K-8, or, sometimes, a high school. And where it doesn't make sense for us to build a high school, we're willing to, essentially, give the parents the money we otherwise would have spent, and say, "Here parent, you can put your kid in some school someplace and we'll pay for it."
And that program was open to a wide variety of schools in Maine, a wide variety of schools outside of Maine. People have been able to send their kids to rich boarding schools in New England. They've been able to send their kids to boarding schools in California and Paris. So Maine was not terribly picky about where you took this money. But the one rule Maine really insisted on was you couldn't take it to a place that actually practiced religion. So, Boston was kind of any flag but a religious flag. Carson was kind of any school but a religious school.
And then the last one of the trio was Kennedy v. Bremerton, which is about the coach, Coach Kennedy, the football coach, who got fired for wanting to kneel and say a short prayer by himself at the 50-yard line at the end of a football game. And, again, the evidence in that case was that the school district would have been fine with him talking to a buddy or talking to his friend or calling his wife or making a restaurant reservation. He really could have done whatever he wanted on the 50-yard line, but not pray.
So I think those three cases together, Shurtleff, Carson, and Kennedy, all kind of fit this mold of the governments that have this view that says "Do whatever you want there, just don't do religion. Just keep religion out." That view is one that I don't think the governments, like, made up. The governments got there, really, because of something the Supreme Court made up, which is the Lemon test. The Lemon test comes from a case, Lemon v Kurtzman from the early '70s — it may have been the late '60s, late '60s or early '70s — where the Court was looking at a school funding program in Rhode Island, and the Court said, "Well, we can't quite figure out what establishment means, so we'll just look at our own cases, and from our own cases we'll kind of discern what we think the rules are."
And they came up with this pretty notoriously bad three-part test of "We'll figure out what's the purpose and what's the effect, and is there entanglement?" And the Court really made no effort to anchor that in the Constitution or in the constitutional understanding of what an establishment was when the First Amendment prohibited that. And the result of that really has been generations of lower courts and generations of governments and government officials that have internalized the view that the best thing to do is just keep religion out. It's this separation of church and state, to the point of exclusion of religion, or worse treatment of religion, whether it's for your employees or people in a government program or people who want to do something on City Hall Plaza.
All three of these cases I really do think the government actions were driven by having internalized this bad Lemon-driven view of the Establishment Clause. As my colleague, Eric Rossbach, at the Becket Fund has spelled out in a Law Review article from seven or eight years ago, around the time of Town of Greece, the Court really took an important turn toward history in its Establishment Clause. So Lemon was the Court saying, "Gosh, we can't tell what the history is. We don't really know what that word 'establishment' means, so we'll make it up, and we'll invent a test."
And from Town of Greece on, the Court has actually done a relatively consistent job of saying, "Well, we have to be careful to pay attention to the history of the Establishment Clause, and what did the people who wrote and agreed to the Establishment Clause actually understand an establishment to be? Michael McConnell has an excellent Law Review article from about 20 years ago, spelling out what the hallmarks of an establishment were to the founding generation. Because, of course, people didn't just use that term as a stand-in for too much religion.
An establishment of religion was an actual thing. And these people had lived with that actual thing. They knew what it was. And what Professor McConnell does an excellent job of is marshaling the history and saying here are the basic attributes of an establishment of religion as it would have been understood by the people who agreed to put that limitation — not some other limitation, that limitation — into the Constitution.
Okay, how does that play out over these three cases? Well in Shurtleff, there's what I thought was this pretty cool moment during the argument where Justice Kavanaugh leans forward to the attorneys from Boston and says, "Look, isn't the problem here just that governments haven't gotten the message that the Establishment Clause is not supposed to be used to be treating religion worse? The religious people get to participate on equal terms, just like everybody else does" And, of course, Shurtleff ends up coming out 9-0. Obviously, it's not -- they didn't all get together on one opinion. But in concept and in result, all nine Justices agreed Boston was wrong.
It can't have a program that lets everybody fly a flag and then say, "But not the religious person," any more than you could let anybody who wants to walk down Main Street have a parade, but not the Klan; or anyone can have a meeting on the National Mall, but not the Republicans or not the Democrats. You just can't do that. If you're going to say your flagpole is a public forum, you've got to let everyone participate. And this old, bad understanding of Lemon doesn't let you say, "Oh, keep the religious people out from where everyone else is free to go."
Importantly, in Shurtleff, Justice Gorsuch wrote a concurrence, which ends up getting picked up in the majority opinion in Kennedy at the end of the term. But in Gorsuch's concurrence, he taps into that Michael McConnell Law Review article about the hallmarks of an establishment. And he says, "This is how we should go about figuring out what's an establishment. We should actually look at, historically, what did people understand an establishment to be, because that's what they were agreeing to." They didn't agree to a free-roaming, "judges will figure out what's too much religion" test. They agreed to a “no establishments.” And that actually had meaning to them. And Justice Gorsuch spells that out some in his Shurtleff concurrence. So Shurtleff ends up being non-controversial, relatively, at the court, 9-0.
The next one on the list, Carson v. Makin is the schools case from Maine. And that one ends up being a 6-3 decision that if Maine is going to fund all of these other schools and let parents pick all of these other schools, it also has to allow the religious schools to participate too. In other words, Maine's not allowed to have a program that says the one kind of school you can't have here is a religious one. If parents get to send their kids to -- if they want a rich boarding school in France or a private secular school down the road or something in California, if Maine says, yes, yes, yes to all of those things, then it's not allowed to have a special anti-religion rule.
In some ways, Carson is the culmination of a line of cases that dates back over the past four to five years, with Trinity Lutheran v. Comer. That was the ADF case about the playground in Missouri where they were allowed to resurface playgrounds with scrap tires. And any non-profit could get the grant to do it except a religious one. And the Court said no. So Trinity Lutheran was the beginning, I think, of this trilogy of cases; Espinoza, from last term, which was the case about the tax credit or the voucher program in Montana that was excluding religious schools; and then Carson this year.
At the end of that, you actually have a pretty strong trio of cases saying that where the government has a benefit program that is generally open to the public, it is not allowed to have an "exclude religion" rule, which is what each of these programs had. Chief Justice Roberts, again, takes the pen to write this opinion. It's a very strong opinion. It strongly endorses the idea that religious groups get to participate in these kinds of programs. The Chief also makes an interesting move in the course of the opinion, tapping into the church autonomy line of cases: Hosanna-Tabor and Our lady of Guadalupe, two Becket Fund cases that built out the control and the power that schools ought to have over how the faith gets taught at their schools.
And what the Chief does in Carson is he emphasizes that the state doesn't get to micromanage how the religious group inculcates values and spreads its religion in the classroom and in the school. And I think that is likely to be important going forward, because I think it’s a pretty strong signal from six justices that the governments aren’t going to then be able to turn around and say "Okay, well, since you took my money, you have given up all your rights to be religious." I don't think the Court's going to let that happen. So I think Carson is a good, strong win for religious liberty. And that was a case -- I should say, Shurtleff was a Liberty Council case, and Carson was First Liberty and Institutes for Justice; IJ argued that case.
So the third in the trio is the Coach Kennedy v. Bremerton case. That's another First Liberty case argued by Paul Clement, I believe argued when he was still at Kirkland. But it may be the first Supreme Court win of the newly-formed Clement & Murphy firm after Kirkland apparently got tired of winning so much with Paul Clement and Erin Murphy on their team. So Kennedy v. Bremerton, a 6-3 win for the coach. Really, a really great opinion by Justice Gorsuch for the Court. The opinion does a number of things. One, it says, look, it violates the First Amendment to punish the school employee for exercising religion.
You can't just say to a public-school employee, "Well, you work here, so you're not allowed to say that kind of stuff." There are some limits, and they're not allowed to just forbid him from acting religious, and the Court says, any more than you could forbid a Jewish teacher from wearing a yarmulke, a Muslim teacher from turning and facing Mecca to pray five times a day, and so forth. These employees still have rights. And the government is still discriminating based on content and viewpoint and religion when it punishes and fires the guy for his prayer.
But the Court, in Kennedy, went one step further — one very important step further — and said, "And just to be clear, that old test we had from Lemon is a bad test and shouldn't be applied anymore." And I think that was really an important thing for the Court to do. We at Becket had been asking the Court for many years to do this, because the Lemon test came out and it didn’t take much time for it to become clear that it was a very manipulable test. Judges could kind of use the test to come up with whatever answer they wanted. The prongs of the test were pretty open-ended. And so it was a terrible constitutional test, and everybody knew it. And the Supreme Court over the last 20 years had taken to not using it very much.
So Establishment Clause cases would get to the Court and then they would just not use the Lemon test. But, of course, the lower courts still considered themselves bound, because the Court had not overruled Lemon, hadn't said to get rid of it. And so the lower courts and governments were still using this bad test that I think the Supreme Court had signaled wasn't good anymore, but they hadn't really sounded the death knell. Well in the Coach Kennedy case, they say that test is over and done with, and, instead, you really need to look to history.
And, just to kind of wrap this up, the Court then taps into Justice Gorsuch's concurrence in Shurtleff and says, "Well, how are we going to figure out what's an establishment? Well, we're going to look to the hallmarks of an establishment." And I think they are signaling that they're going to tap into that Michael McConnell way of thinking about what an establishment is, which I certainly think is the right path for the Court to take.
One other point about Justice Gorsuch's excellent opinion in the Kennedy case. He points out that the critics of the opinion and the folks who wanted to say the coach shouldn't be allowed to pray within sight of anybody or acting like observing somebody exercise a religion that is not your religion is a particularly dangerous or troubling thing to do. And Justice Gorsuch says it's actually the exact opposite. Letting the government punish that is the dangerous and troubling thing to do. I think the kids see that.
His teacher might have a different set of religious beliefs than he has. And that the teacher is actually allowed to freely do that and can't be punished for it is actually sort of a quintessentially American, this is how you live in a country with people who have deep but different beliefs about things is they're allowed to express them and the government doesn't come and clobber them. The government doesn't force them to be silent. Sure, the government can't make you do it. But that doesn't mean the government is in power to fire coach Kennedy for it.
So, by the end, I think those three cases are really the Court's effort to tell lower courts and governments to get out of that old Lemon way of thinking about things, to stop treating religion as if it were asbestos or something else that just needs to be kind of cabined and excluded, and instead bring the Establishment Clause back to what it's supposed to mean, which is there is a thing called an establishment that really is what the government's not permitted to do. And they're not permitted to do the things that are the hallmarks of establishment, like writing prayers and forcing people to say them and so forth. But, otherwise, the Establishment Clause shouldn't be used to exclude religion. Let me stop there. That's my basic take on the cases from the term. And I'm happy to hear your thoughts, Bill, and/or move to questions, whatever you like.
Prof. William L Saunders: Well, just a couple of things. It's interesting in all of these cases, or maybe one of the themes through these four cases is the kind of attention to history which is part of an originalist approach. I mean, it's not irrelevant to other approaches, but it's part of an originalist approach. Do you think this is a workable standard for religious liberty cases? I mean, broadly, both establishment and exercise?
Prof. Mark L. Rienzi: Yeah, I think it's clear that the Court is -- and it's not just in these cases, it's, as you say, across a range of cases, but I think the Court is interested in the history. The Court is interested in figuring out what did "an establishment" mean? And so, yeah, I think the Court cares about the history. The Court, again, from Town of Greece on, the Court really started leaning on history a lot in the Establishment Clause cases in saying this will help us understand what an establishment of religion really was.
So, yeah, I think it's something we're going to see in a range of religious liberty cases. And it's something the Court's been doing for a while. But I think some of the lower courts and governments hadn't gotten the message, which is why the Court was trying to send the message strongly here.
Prof. William L Saunders: You know another thing that -- I felt curious, anyway, when I read the Bremerton case -- was just the way that the Lemon test was talked about, which is that Lemon has been dead for quite some time and we're just reminding you of the fact. I mean, that's the way I would put it. That's not the way they put it. But why not just say -- I mean, obviously it was unclear to federal courts at appellate and district court level that Lemon was gone, because they kept deciding, as you said, cases relying on Lemon. Why not just say, "We overrule Lemon"? I mean, I realize that's, in effect, what they did. But why not just say that?
Prof. Mark L. Rienzi: I don't know. I can't read their minds. I can hazard a guess. One guess is that it maybe seems easier to just say, "Yeah, look, if you look at the past, we've already moved past that one," than to announce, "We hereby, today, overrule it," and go back and apply all of the stare decisis factors that everybody was fighting over in --
Prof. William L Saunders: Dobbs?
Prof. Mark L. Rienzi: -- in Dobbs, in the other cases. Right. So it could have just been a situation where the path was easier to just acknowledge. Really what I do think, in practice, they had already done, they had already stopped using Lemon for quite a while. So I assume that that may be it, but I, of course, don't actually know. I would have been happy -- they certainly could have written the opinion that went through the factors and explained why Lemon was terrible, as opposed to just observing that they've gotten rid of it.
Prof. William L Saunders: Yeah, I mean, you had a majority for that statement, so there's no question Lemon is gone.
Prof. Mark L. Rienzi: Yeah.
Prof. William L Saunders: The only other thing I would like to ask you before we open up for questions is I'm involved in various meetings of various groups of various perspectives here in Washington D.C. on religious liberty and there was a lot of apprehension about the Kennedy v Bremerton decision among, again, loosely, what you might call left or center-left groups, and it doesn't seem to me that, now that that opinion is out, it's anything to be very much afraid of. It doesn't permit coercion of people or anything like that. Do you have any thoughts on that? There was a lot of fear among the liberal left about this case, but I don't think it's a decision to be feared.
Prof. Mark L. Rienzi: Yeah, I think the Court went out of its way to say that it's not endorsing coercion. Look, if anybody's opposed to coercion, the main coercion that was going on in that case is the man who lost his job. The government came and fired a guy because he wouldn't do what they wanted him to, because he was exercising his religion when they didn't want him to. So it's a little bit rich to read the opinion and say, "Oh it should have come out the other way, because I'm concerned about coercion."
It's true that the government ought to make sure no one gets forced to say a prayer they don't want to say. That's certainly true. But the Court made clear that it wasn't endorsing that. So, no, I don't think we're headed down a path where that's a big problem. And, again, to me, just the most obvious, blatant, strong-arm coercion you could imagine is the government firing someone from his job because he said a prayer. That's the real coercion that's going on in the case. The Court stopped that one.
Prof. William L Saunders: Yeah. Well, we can start taking questions.
Prof. Mark L. Rienzi: I've got the Q&A thing open, so I'm happy to just kind of plug through.
Prof. William L Saunders: Well, the one I'd like you to answer first — and then you can take any of them — is the second one, from Jeffrey Wood --
Prof. Mark L. Rienzi: Sure.
Prof. William L Saunders: -- because a lot of people will be interested. "Is Employment Division v. Smith still intact?"
Prof. Mark L. Rienzi: Yeah, the short answer is it's at least as intact as it was before these cases. So it's intact. The Court has not overruled it. You know from the Fulton case a term ago that there are at least five or six justices who are certainly open to overruling it. But I think they're looking for the right case. And, ultimately, I don't think any of these cases require them to overrule it. And, again, going back to my hypothesizing about maybe why they didn't do a full-dress overrule of Lemon here, I think they may be looking for the right time. They've obviously signaled an openness to do it. But they didn't overrule Employment Division v Smith here.
I suspect they'd say -- they may have even said this -- I don't think anybody asked them to overrule Employment Division v Smith in this case, because, whatever you think of Employment Division v Smith, and I think it's quite wrong, but whatever you think of it, even Smith says if something is punished simply because it is religious, that that violates the Free Exercise Clause. So there's many, many things, I think, that are wrong with the Smith regime. I think it's a bad way to do constitutional law, but, even under Smith, Coach Kennedy should win. So they left it intact, I think, because they didn't need to go get it. But I think it's still clear there is an interest and a willingness to consider getting past Smith in a case where Smith really causes the trouble.
Prof. William L Saunders: So, Mark, why don't you take the next one?
Prof. Mark L. Rienzi: Yeah, let me just run through the questions in the order they're asked. So, Justin Janke (sp) asked a question about the fact that they applied un-originalist precedents -- I assume that's talking about Smith and maybe some of the speech precedents, and they still used means-end scrutiny. I don't read a whole lot into that. I think that's, essentially, again, the Court saying, "Well, with the law as it stands in this area, we can get to the right result." So I think they probably weren't eager to go out and remake religious exercise law there, because, under any version of the law, Coach Kennedy ought to win. That's, at least, how I would chalk that one up.
Employment Division v Smith, we hit. Paul Schmidt's got a question about Carson. So some states have announced that they're going to tighten non-discrimination requirements in response to Carson. I think schools will have very strong arguments in response to that if the government says, "Well, now that you are taking my funds, you don't get to insist," for example, "on having a religion teacher who fits your religion, or hiring according to your faith." I do not think the Court was saying to the governments, "Hey governments, you can let the religious groups in, but you can make the price of participation that you shed your religious identity or you violate your religious beliefs. So I've read some of those articles too, but I think those governments are way out over their skis and I think they are quite likely to lose.
And the question also asks, "Will religious schools have to prove religious targeting or gerrymandering?" I don't think they will or they should, but I think they can. I think it would actually be pretty easy to do it. All of these governments, or many of these governments, came right out and announced, said, basically, "Okay, fine. If I have to have the religious school in here, I'm at least going to come up with something that the bad religious school can't do, like let me control their hiring." So I actually don't think it would be all that difficult to show that those things are a version of targeting, if they weren't insisting on them five minutes before Carson, which I think most of them were not.
Prof. William L Saunders: And, in many of these cases, they let in everybody but the religious schools. So it seems to me you're got just about a de-facto --
Prof. Mark L. Rienzi: Yeah, right. And they're changing the rules, saying, "Okay, fine. If the religious people are coming, then I've got a new rule for them." Seems like targeting to me. The lone dissenter in Ramirez, to answer the next question, was Justice Thomas. And Justice Thomas, I think it's fair to say, basically, I don't think he was sure the prisoner was sincere. I think he felt like it was death-penalty gamesmanship, which, of course, the Court deals with quite a bit, with people throwing everything they can to try to avoid getting executed.
That's a pretty understandable impulse from both the client and lawyer. In that context, I think Justice Thomas just didn't believe it was a sincere claim, and thought it was gamesmanship. And Justice Thomas wrote in really heartfelt terms about the person who had been murdered. And he pointed out, well, that person didn't get the benefit of the presence of clergy, he just got murdered out on the street, which I can certainly understand the sympathies there.
Prof. William L Saunders: When you say, Mark, also, you said this was the rocket docket. The Court really was kind of sensitive, in a way, to those concerns. The majority didn't come out the way Thomas did, but they expedited it. They didn't let it drag. Right when it got to the Court, they moved it forward, because they wanted to resolve the issue.
Prof. Mark L. Rienzi: Yeah, I think that's right. I think they moved it forward, because it was a recurring issue on the emergency docket and they addressed it a few times. And I think, in part, they wanted to come up with a clear rule so that it would get resolved in the lower Courts and not at 11:00 at night the day of an execution, which is how it had been coming up.
Just going to take a moment to read the next question, which is a little bit longer. I want to make sure I do it right.
So the question is "What might we expect of the Court, if the Court does overrule Smith and replace it with strict scrutiny? Will it be kind of as strict scrutiny as we've seen under RLUIPA and RFRA, and, if so, how would that carry over to Free Ex claims and limited public forum-type claims." I think the truth is, we, frankly, don't know. I will say that the original Smith decision justified itself, in large part, by saying, "Boy, if we had real strict scrutiny for religion claims, that would be anarchy. The world would go crazy. We wouldn't be able to have it." And I think RFRA and RLUIPA show you that, actually, you know what? We can have it. We can apply it strictly. It's not anarchy. It's fine.
Half the states in the country or so, maybe a little bit more, have state RFRAs and none of us ever drives across the border from state A to state B and says, "Oh, it's anarchy now, because I'm in a RFRA state." No one's ever said that sentence, because it's not really anarchy. So I do think the Court now has 30 years of experience of applying real strict scrutiny and realizing that it actually doesn't result in anarchy. It actually works quite well. It actually just forces the government to work around an occasional objector, which, if their interest is important enough, they should be willing to do. So I would expect that the Court is at least much less scared of true strict scrutiny than it was 30 years ago.
Another question about the Thomas dissent in Ramirez. Again, I don't think Justice Thomas applied the compelling interest test in Ramirez. I think he just said he wouldn't get to that test, because he didn't think it was a good claim.
"Do the establishment clause cases offer any guidance in the area of free exercise, particularly in the area of COVID restrictions?" I'm just trying to think back. I litigated a lot of those cases back in 2020, including the Agudath Israel and Diocese of Brooklyn case that went to the Supreme Court. I think those cases may have had a little bit of Establishment Clause flavor, but they were really Free Ex cases. It was really more the government can't stop you from exercising your religion, rather than saying that the government was establishing a religion.
So I don't think the establishment clause cases do that. I do think somebody in one of the questions referred to the Court really leaning into the fundamental nature of religion. I think that aspect of it you see across both the Court's Establishment Clause and Free Exercise and Statutory Cases. The Court really is recognizing that religion is deeply important. If you look at the COVID cases, it really was pretty ridiculous when governments were saying you couldn't meet for 45 minutes to go to church, but you could sit at a Blackjack table for hours on end, if you're six feet apart, wearing a mask, or -- I think it was New Mexico, it was probably other places too, that said the liquor stores are urgently important.
You've got to keep the liquor stores open, but the AA meetings not so much -- the AA meetings in a church. I think, if you look back on it, the governments in those places really were just devaluing the religious meetings and the religious exercises and saying, "Well, we don't think that's important enough. Wall Street, that's important. Some protest, that's important. Blackjack, that's important, or Hollywood, that's important, just not religion." And I don't think that's -- I think part of having a constitutional protection for religious liberty means the government doesn't get to decide that for you.
Do I think the Court's likely to distinguish summum related to existing memorial monuments versus new ones with overt religious messages? I think the jury is still out. That kind of goes back to the American Legion case from a couple of terms ago about the Bladensburg cross in Maryland. I think the question is going to be, is the government trying to do the things that an establishment of religion did? Is it trying to make people worship God in a certain way, make them pay to do it? Is it trying to force them to pray a certain way, punishing them for praying in a different way, and so forth? I don't think a World War I monument in the shape of a cross does that. I don't think -- somebody put a Gulf War monument up in the shape of a cross, I still don't think it establishes a thing.
So I don't think it's likely that the Court's going to say that makes a huge difference. I think the history they're going to say that matters is that, well, what was an establishment? What counts as an establishment? What did the people who passed that understand themselves to be banning? And I just don't think they understood themselves to be banning religious memorials. If the government were trying to make everybody line up and worship a certain way at a particular memorial, then, sure, that would be an establishment. But I don't think we're likely to see anything like that.
"Is there any historical evidence that the Free Exercise Clause was understood to limit how the federal government could regulate federal employees?" I actually haven't looked into that myself, so I don't know. There weren't a whole lot of federal employees right at the beginning. I do know that the federal government was — even during the revolution — giving religious exemptions, for example, for military service. So I think there's a history there. But the precise question, again, I'm not aware if there are any free-exercise cases about federal employment back then.
So I don't know, other than to say the federal government is the federal government. And the First Amendment regulates them and says they must respect the free exercise of religion. It seems to me a pretty straightforward reading of that is you have to let your employees freely exercise religion. I don't think it's much of a reading of that to say the government can say, "Well, unless you work for the government, and if you work for the government, you don't get to freely exercise religion." I think that would have been an odd reading back then, and it's an odd reading now.
"What level of autonomy do religious schools get under these standards? To what extent can the government constitutionally regulate religiously-affiliated schools?" Those are broad questions. Let me just give a fairly broad answer. Religious schools have the right, under the First Amendment, under the autonomy cases like Hosanna-Tabor and Our Lady and the cases those ones build on, and under the Free Exercise and Establishment Clauses, they have the right to be themselves and to be truly religious and to carry out their religious mission as they see fit. That's why the government doesn't get to pick the minister, doesn't get to pick the religion teacher, doesn't get to tell them who to hire and who to fire.
That doesn't mean that religious schools are completely beyond the reach of government regulators. I don't think the Court is likely to say, for example, that the state can't regulate the math curriculum, and say, "Look if you're going to have state accreditation, you've got to make sure you're teaching multiplication in the third grade." Something like that, I think, that type of regulation is perfectly legitimate.
It doesn't interfere with the school's religious exercise in any way. It doesn't interfere with the school's carrying out of its religious mission. So I think those types of requirements that apply to everybody, there's a good chance those can apply to religious schools too. But what can't be done is sort of the "We'll take away your religious character as the price of entering the public square."
A question about will the Court reconsider overturning Employment Division v Smith. And I think the answer is yes. They’ve indicated quite clearly that several of them are quite open to that and that they just need to think through what replaces it and how it works. But the questioner points out that governments are getting better at trying to craft laws that are neutral and generally applicable.
I do think the Court, over the past few years, has been tightening that test and being clearer. They did that in Diocese of Brooklyn, they did it in Fulton, being clearer about the ways the government can run afoul of general applicability. But, ultimately, the questioner is right that a smart government can often find a way to craft a law a certain way, to get some judge to say it's neutral and generally applicable. The truth is the Free Exercise Clause doesn't say you have the right to free exercise of religion unless the government passes a generally applicable law. It just says you have the right to the free exercise of religion. So I think that's true.
"How will these decisions affect the school prayer cases?" I'm not sure that they will, frankly. I'm not sure that they will. I think something like Engel V Vitale, where the government is writing a prayer, then the government agent is leading the children in saying the prayer, I don't see anything in the Kennedy case that says the Court's likely to depart from that. They emphasize that he was out on the field by himself. So I'm not sure it does.
"Is the establishment clause really a Protestant denomination clause?" I don't think so. I think the Establishment Clause said there's a thing we don't want the government doing. It's having an established religion. And so I think the point of it was to say we don't want the government having an established religion. We also want the government to let people freely exercise their religion. These cases that came up this year were really ones where the government had an overactive sense of what is the right way to avoid an establishment, and I think the Court is trying to put that back in the right box.
"What about questions of human origin?" I'm going to guess that what that means is -- does that mean that the state schools can't teach evolution, or that religious schools have to teach evolution? Sure, I could imagine a conflict between states and some accreditors and some religious school, if there's a religious school that says, "We don't want to teach evolution," and the state says, "You must." I can imagine a conflict over that. And you'd have to see, does government have a good enough reason to override the religious school? Most religious schools I know of do teach evolution, or some version of it anyway. But, yeah, I think that's a possible ground for conflict, going forward.
Prof. William L Saunders: Mark, I don't know if we're going to get any more questions, but one thing I'd like to ask you, in your role as President of the Becket Fund, what do you anticipate coming up the next term? We don't know what cases are going to come up. There are a few we know about, but others will be added. Given what happened this term, and the direction that the Court seems to be taking, particularly in the last three cases, do you have any thoughts about what we may be seeing as kind of the next case?
Prof. Mark L. Rienzi: Yeah. Great question. And I know we don't have too much time, so I'll do a short version of the answer. One, last term, and, frankly, the last decade, we've seen the Court --
Prof. William L Saunders: Mark, I just want to say I think we've got about 15 minutes, so --
Prof. Mark L. Rienzi: Okay, great. Last term, and, I'd say, like, the last decade or twelve years, we've seen the Court do a lot of religious liberty, so it's not too big a surprise. There's not much on the Court's docket coming up this year on religious liberty. The one case they've so far taken is the 303 Creative, that's an ADF case about someone who designs websites, a truly awful opinion by the Tenth Circuit Court of Appeals saying it's totally fine to force her to write websites or same-sex weddings that she doesn't wish to support.
But it's interesting. The Court took that case and kind of narrowed the question presented to focus it only on speech. So they took the Free Ex question out and made it just a speech question. I frankly think part of that is because the speech analysis is so clearly wrong what the Tenth Circuit did, that it's a pretty easy speech case. Folks should go read the Tenth Circuit opinions in 303 Creative. It's about the worst First Amendment opinion you could imagine from a court of appeals.
So I think it's a straightforward case. The Court is very, very likely to rule in favor of the wedding vendor. But they're not going to do it on expressly religious grounds. That said, I do think — and this is what we pointed out in our brief — that, even within the protection of free speech, there is a place for saying that religious speech, just like political speech, gets the highest level of protection. So it's not out of the question. And I would expect that in the opinions you'll see some discussion of the importance of religion or religious speech, even though they decided on speech grounds.
Beyond that, there's plenty of cases in the pipeline that you can imagine the Court granting and considering later in the term. We've got one called Smith v Ward, which is a prison conditions case about a Muslim prisoner who's been denied the right to grow his beard, kind of a follow-on to Holt v Hobbs. There is the Groff case, which is a First Liberty case that raises the TWA v Hardison question. And there are — maybe not surprising — a bunch of cases coming out of the Ninth Circuit. Some of them on sacred lands for Native Americans that are likely to get on the cert petition list this fall.
One of them was just argued earlier this week, about governments kicking out student groups from high schools, a student Christian athletes' group being kicked out because they want leaders who affirm their faith. And then there's cases in a few different circuits about the ability of churches asserting church autonomy defenses to get resolution of those early in the case, as opposed to later. There's a Second Circuit case called Belya, a Tenth Circuit case called Faith Bible. So there's a bunch going on that's kind of on-deck coming to the Court, but they haven't granted a lot yet. You still could see a lot that gets on the docket for next year. It would just be toward the back end I think.
Prof. William L Saunders: Do you think that the death penalty cases and religious liberty issues there have been -- they'll continue to arise because people on death row will raise issues, I guess, but do you think that Ramirez is going to signal a significant point in that which these will be reduced now, because it will be clearer what can be done or not done by a state?
Prof. Mark L. Rienzi: Yeah, I think if I had to read the justice's minds, which is always a dangerous thing, but if I had to read them --
Prof. William L Saunders: We're just guessing.
Prof. Mark L. Rienzi: Yeah, I think that's the reason they did Ramirez the way they did Ramirez. And, sometimes, the Court, of course, likes to be very incrementalist and go bit-by-bit, and sort of step-by-step. But, sometimes, if they don't just kind of rip the band-aid off and clearly instruct the lower courts, "This is the right answer and this is how you do it," then the result will be that things keep pinging back up to them. You saw this with, like, the contraceptive mandate. It kept popping back up. They had to do three or four cases on the contraceptive mandate.
So sometimes there's real value in the Court just very clearly taking the case, making a merits decision, so the lower Courts know, and the other governments know this is the rule. In some sense, part of the reason they're dealing with 303 Creative is that they decided Masterpiece in a way that the lower courts didn't quite get the message. The lower courts, after Masterpiece Cake Shop kept saying, "Oh, well, I can distinguish Masterpiece." They shouldn't have done that. They should have just gotten the message. But they didn't.
So Ramirez, to me, is the Court trying to speak very clearly to the lower courts and to the governments and say, "Here is the rule. Follow it." And hopefully, I think they're thinking, "We will stop getting that on the emergency docket now." And I think Coach Kennedy was a version of that too. I think there's a lot of wisdom in the Court proceeding that way, because I think it gives clarity that people need, and it also reduces some of the headaches the Court needs to deal with. Goodness knows they have enough big things to deal with to not inflict some of these things on themselves by not speaking clearly.
Prof. William L Saunders: I think there are a few other things that have come through on the chat.
Prof. Mark L. Rienzi: Let me take a look at the questions. Religious charter schools, I think that's something we will see litigated in the near future. There's some places that allow anyone who wants to get a charter to get a charter unless you're a religious group. I think after Carson there's a much better case to be made that the governments can't be excluding the religious groups. And I think you'll probably see litigation, then, over, okay, if it's a charter school, what rights does it have, once it's a charter school, to exercise religion and so forth. So I think that is an area that we will see some conflict in the coming years.
"What are the implications for a vigorous originalist perspective of the existence of established state churches when the Bill of Rights was ratified and for some time thereafter?" I may be misunderstanding the question, but my own view is, not much. Because, at that time, the federal First Amendment just did not apply to the states, so I don't think of that as a problem for interpretation of the First Amendment. They were allowed to have established churches, because the First Amendment didn't reach them until after the Fourteenth. And I apologize, Jeffrey, if I'm misunderstanding the question.
Okay, this is heading towards the Justice Thomas area, now that I read the next question. "Is incorporation of the Bill of Rights against the states to the Fourteenth Amendment defensible by a strict originalist?" I actually don't know. I haven't done that analysis myself. A strict originalist who I respect an awful lot, Clarence Thomas, doesn't think so. But I actually don't know and haven't formed an opinion on how defensible that is as an originalist matter.
"In cases like Ramirez, what sort of compelling justifications does the government usually offer?" What they try to say is, "Look, if we have the clergyman in the death chamber, he could interrupt the execution. He could tackle the guy who's doing the lethal injection. He could shout disparaging things at the security guards." But the problem is those were all pretty hypothetical. And the, frankly, unfortunate, fact is we've put an awful lot of human beings to death in our country. And the Court looked at that history and said, "You can't find me any example of the preacher attacking the executioner."
So we've actually got a long history, and it seems like it can be done safely. So they assert public safety, which, of course, is a compelling interest. They assert safety for the government employees, which, of course, is a compelling interest. But they kind of fall short on connecting the dots between that and having a background-checked minister in the chamber, which doesn't seem to have ever caused a problem.
My throat's running out of juice here. Let me do what, I think, for me, will be the last questions. "Some abortion protests have targeted churches. Others have targeted religious services. Can state governments limit picketing at worship services like they can at private residences? Could the Free Exercise protection for worship provide similar protection?"
So the short answer is I think the statute already does. The Federal Free Access to Clinic Entrances Law -- so this is the law that was passed to protect abortion clinics in the '90s. It doesn’t stop protest, but it does stop interference and obstruction and threats of violence and defacing, and things like that. So, just like you can still protest and say prayers outside of an abortion clinic and offer somebody help. That's the McCullin case. You can still do that on the sidewalk. But you can't block the door, tackle somebody or run into the waiting room and interfere.
Well that same law, the Free Access to Clinic Entrances Law, actually also contains a provision that applies to houses of worship. So I'm not sure that you'd get something that says you can't protest outside of churches. I think you probably could. But I don't think you have a right to go barge into a church and interfere with their operations, to deface a church, or to attack a pregnancy center. I think that pregnancy centers fall within the definition there. So I think there's already a federal statutory law. What we need, frankly, is a federal government that vigorously enforces that law for all sides. That, I think, would help.
And, related to that question, somebody asked, "Are there major implications for religious liberty from overruling Roe?" There certainly could be. I do think we've had a lot of what I would call dumb proxy fights that are really fights over abortion that have spilled into religious liberty, like trying to force nuns to buy contraception. I honestly think that whole fight erupted because people were looking for a place they could fight about abortion.
Well, after Dobbs, you can just actually fight abortion directly in your state legislature, and you don't need a proxy battle. So it's not going to cool anything down in the next few years. As everyone can tell, energies are running hot on all sides. But, in the longer run, yeah, I think Roe was terrible for religious liberty. And I think we've got a better chance of learning to live and let a little bit in a post-Roe era, just not in the next five minutes.
Prof. William L Saunders: Okay, Mark. I think that's just about it. We might have a minute left. Anything you want to say to wrap up?
Prof. Mark L. Rienzi: No, I'm good. And my throat's -- my throat's running out of juice.
Prof. William L Saunders: Okay.
Prof. Mark L. Rienzi: So, sorry if I talked too much or too fast, but I appreciated all the questions. And sorry if I missed one.
Chayila Kleist: With that, on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We welcome listener feedback by email at email@example.com. As always, keep an eye on our website and our emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.