Religion on the docket: SCOTUS decides on cases with religious ramifications

Image of sunset shadows on U.S. Supreme Court building.
The Supreme Court is set to decide on significant social controversies related to abortion, the separation of church and state, and normative clarity around the limits of religious free speech.

Perhaps NPR’s Nina Totenberg put it best when she said the docket for the 2021-2022 U.S. Supreme Court term is “a humdinger with major cases involving the biggest social issues of the day.”

With a notably altered composition after the addition of three Trump appointees, the court now features six reliably conservative members. With that makeup, SCOTUS is set to decide on significant social controversies related to abortion, the separation of church and state, government surveillance and normative clarity around the scope of free expression.

The news cycle on these cases started back in October as oral arguments began and three decisions were already issued. The churn of news is picking back up again as some cases are just now being argued and other rulings are handed down.

Just as this edition of ReligionLink was about to go to press, the decision on Shurtleff v. Boston came out. Then, quite dramatically, a draft opinion from Justice Samuel Alito was leaked to Politico, wherein he writes that the 1973 Roe v. Wade decision legalizing abortion is “egregiously wrong.” The leak is unprecedented and if the draft is issued as a majority ruling, it would overturn the constitutional right to abortion in the U.S.

This ReligionLink will get you up to speed with background explainers, resources and experts for covering the most relevant, religion-related cases the Supreme Court is set to decide on this term — or for which it already issued judgment.

The cases in question

By our count, six separate cases have had religious aspects and angles to them in SCOTUS’ 2022 term. Among them are “issues that for years have been among the country’s most heated political debates,” said NPR’s Totenberg. The number and scope of them mean that SCOTUS decisions on these cases could result in precedent-flipping, life-changing and policy-transforming ramifications once decisions are handed down.

Given the tilt of the court in a more conservative direction in recent years, the high-stakes cases have taken on increased political heat. Pundits on both sides are ramping up for the aftermath and the next battle lines, whatever the rulings may be.

Below are a few summaries to get you up to speed on the six cases ReligionLink identified as particularly relevant for religion reporters and other “religion nerds.”

General overviews and background:
A rundown of religion-related cases:

Each of these cases will get more in-depth treatment below (with related stories and potential sources), but here are some quick summaries to get you started:

  • Dobbs v. Jackson Women’s Health Organization — The scope of the constitutional right to abortion — and the fate of the landmark 1973 Roe v. Wade decision — is at stake in this case, which involves an appeal by Mississippi to revive the state’s Republican-backed law that bans abortion after 15 weeks of pregnancy. (From SCOTUSblog.com)
  • Carson v. Makin — The possibility of expanding — or restraining — religious rights is at issue in this case, which involves a challenge to a Maine tuition assistance program that bars taxpayer money from being used to pay for religious instruction in schools. (From SCOTUSblog.com)
  • Shurtleff v. Boston (DECIDED) — The Supreme Court ruled unanimously on May 2, 2022, that the city of Boston violated the Constitution when it rejected an application to fly a Christian flag on one of the three flagpoles in front of City Hall. (From SCOTUSblog.com)
  • Kennedy v. Bremerton School District — This case will decide whether a public-school employee who says a brief, quiet prayer by himself while on school property and visible to students is engaged in government speech that lacks any First Amendment protection; and whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.  (From SCOTUSblog.com) 
  • Ramirez v. Collier (DECIDED) — The Supreme Court ruled on March 24, 2022, that a man on death row in Texas could have his pastor touch him and pray out loud during the prisoner’s execution. The decision came after an almost three-year-long dispute over the presence of spiritual advisers at executions. The ruling, which urged states to adopt clear rules for the future and instructed courts to allow executions to go forward with religious accommodations when necessary, brought together justices from both ends of the ideological spectrum. (From SCOTUSblog.com)
  • Federal Bureau of Investigation v. Fazaga  (DECIDED) — The Supreme Court decided in March that a provision of the Foreign Intelligence Surveillance Act does not trump the “state secrets” privilege, a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security. The ruling was a blow for the three Muslim men who filed a lawsuit claiming they were targeted by an FBI counterterrorism investigation because of their religion and numerous other Muslim Americans who faced what they deemed unreasonable and illegal surveillance in the wake of 9/11. Broader questions about the interpretation of FISA remain for another day. (From SCOTUSblog.com)

Dobbs v. Jackson Women's Health Organization

It is almost impossible to overstate the impact of Roe v. Wade on American public life. The Supreme Court decision on Jan. 22, 1973, upheld abortion rights and prohibited states from banning abortions before fetal viability (roughly 23 weeks).

The ruling, along with Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, transformed American politics. The ongoing debate about these rulings’ legacies is set to be decided — at least for the foreseeable future — in the Dobbs v. Jackson Women’s Health Organization case.

At issue is a challenge to an abortion law enacted by Mississippi in 2018. The law bans most abortions after 15 weeks and is opposed by abortion rights advocates as a violation of the precedent set by Roe v. Wade.

To say the least, the debate around Dobbs v. Jackson Women’s Health Organization has been heated. As if the case were not already dramatic enough, an unprecedented leak of a draft opinion by conservative Justice Samuel Alito signaled SCOTUS is likely to overturn Roe v. Wade. Draft opinions can change, but many are assuming that the leak will soon become the law of the land.

Numerous states already have laws that limit access to abortions, prohibit the procedure outright or otherwise curtail what supporters regard as the constitutional protections enshrined in the landmark 1973 SCOTUS decision.

If Roe v. Wade is indeed rolled back, 22 states will immediately make abortion illegal through so-called trigger laws. More could quickly follow with additional restrictions.

The leaked opinion, and the subsequent reaction to it, signals that the ruling will become a vicious political tussle in the upcoming midterm elections.

Related stories:
Potential sources and experts:
  • Tricia C. Bruce

    Tricia C. Bruce is a sociologist with the University of Notre Dame’s Center for the Study of Religion and Society and University of Texas at San Antonio’s department of sociology. She is the author of several award-winning books on religion and society (Faithful Revolution; Parish and Place; American Parishes; Polarization in the US Catholic Church); her forthcoming book examines ordinary Americans’ abortion attitudes.

  • Charlie Camosy

    Charlie Camosy is an associate professor of theology at Fordham University. He writes regularly on abortion rights, medically assisted suicide and other political issues, including paid family leave. 

  • Catherine Glenn Foster

    Catherine Glenn Foster is president and CEO of Americans United for Life, which uses legal action and legislative advocacy to oppose abortion rights and medically assisted suicide. She is an attorney and previously worked for the Alliance Defending Freedom, a high-profile law firm that specializes in religious freedom cases.

  • Latishia James-Portis

    Latishia James-Portis is a ministry and spirituality coach, program director for Move to End Violence and a member of the Planned Parenthood Clergy Advocacy Board. Contact through Move to End Violence.

  • Jes Kast

    Jes Kast is a minister in the United Church of Christ, a relatively small, progressive denomination with a little less than 1 million members. Kast serves on the clergy-advocacy board of Planned Parenthood.

  • Danya Ruttenberg

    Rabbi Danya Ruttenberg is scholar-in-residence at the National Council of Jewish Women. She is also an award-winning author and writer and was named by Newsweek and The Daily Beast as one of 10 “rabbis to watch.”

  • Karma Lekshe Tsomo

    Karma Lekshe Tsomo is a professor of Buddhist studies in the department of theology and religious studies at the University of San Diego. Her research interests include women in Buddhism, death and dying, Buddhist feminist ethics, Buddhism and bioethics, religion and politics, and Buddhist transnationalism.

  • United States Conference of Catholic Bishops

    The United States Conference of Catholic Bishops is an organization that works “to unify, coordinate, encourage, promote and carry on Catholic activities in the United States.”

    Contact: 202-541-3200.

Carson v. Makin

Though many are focused on the Dobbs v. Jackson Women’s Health Organization case, it is probably Carson V. Makin that is “the most significant religious freedom case of the term,” said Amanda Tyler of the Baptist Joint Committee for Religious Liberty in an interview with the Center for American Progress.

Maine law entitles every child to a free, public education. However, half of Maine’s school districts do not run their own high schools. Therefore, Maine’s State Legislature created a tuition assistance program to pay for students to attend public or private schools inside or outside of the state. The catch is that the tuition-assistance program only allows the funds to be used at “nonsectarian” schools. Certain private schools were labeled as sectarian and not approved to receive funding. The state views this practice as “religiously neutral.”

Three sets of parents filed a complaint in 2018 at the U.S. District Court level, alleging that the program requirement infringed on their First Amendment rights, including the free exercise of religion. Interestingly enough, the parents cited Cardigan Mountain School, a private boys’ school in New Hampshire attended by the son of Chief Justice John Roberts, as an example of a “nominally religious” school that was approved to participate in the program. The case was argued before the Supreme Court on Dec. 8, 2021.

On face value, at issue is whether Maine violated the Religion Clauses or the Equal Protection Clauses in prohibiting students and their families from using available student-aid to attend schools that provide religious — or “sectarian” — instruction. In other words, does a state violate the Constitution when it operates a program that provides students with money to attend private schools, but bars them from attending schools that provide religious instruction? 

The BJC’s Tyler said, “the court seems poised to say that the Free Exercise Clause requires Maine to use its public education dollars to fund religious schools.

“What will be telling, of course, is how narrowly written the opinion is—whether it applies to the peculiar facts of the Maine public school system or whether the court is paving the way for much more government funding of religious schools and, therefore, religion,” she said.

Thus, on a deeper level, SCOTUS is revisiting a question left unresolved from a previous case (Espinoza v. Montana Department of Revenue in 2020): whether public education funding can be more broadly used for religious education.

Related stories:
Potential sources and experts:
  • Montse Alvarado

    Montse Alvarado is the vice president and executive director of the Becket Fund for Religious Liberty, which has represented a wide variety of religious ministers, schools, prisoners and hospitals before the Supreme Court. Arrange an interview through Ryan Colby.

  • Baptist Joint Committee for Religious Liberty

    The Baptist Joint Committee for Religious Liberty is an umbrella organization of 15 Baptist bodies that work to promote religious liberty. They advise member denominations on religious liberties issues. It is based in Washington, D.C. Its executive director is Amanda Tyler, with J. Brent Walker serving as a consultant to the organization.

  • Michael Bindas

    Michael Bindas is a senior attorney with the Institute for Justice, which is representing the parents suing to reinstate Montana’s tax credit program. He specializes in cases related to educational choice and freedom of speech.

  • Caroline Mala Corbin

    Caroline Mala Corbin is a law professor at the University of Miami who specializes in First Amendment issues, including free speech and religious freedom. She regularly joins amicus briefs on religious issues that are filed with the Supreme Court.

  • Shirley Hoogstra

    Shirley Hoogstra is president of the Council for Christian Colleges and Universities. She has argued that expanding nondiscrimination protections for the LGBTQ community without expanding religious freedom protections would threaten the future of religious schools.

  • Alice O’Brien

    Alice O’Brien serves as general counsel for the National Education Association, which filed a brief opposing tax credit programs that benefit private schools in Espinoza v. Montana Department of Revenue.

  • Donna Orem

    Donna Orem is president of the National Association of Independent Schools. The association includes more than 1,600 independent private K-12 schools in the U.S.

    Contact: 202-973-9700.
  • Christopher C. Taub

    Christopher C. Taub is Maine’s chief deputy attorney general. He has litigated numerous cases in state and federal court in matters involving federal civil rights laws, employment discrimination, federal environmental laws, the Maine Tort Claims Act, the First Amendment, federal preemption, the Freedom of Access Act, breach of contract, the Americans With Disabilities Act and Medicaid law. Taub represented the respondent, A. Pender Makin, in Carson v. Makin.

Shurtleff v. Boston

There are three flagpoles in front of Boston’s brutalist City Hall.

One bears the Stars and Stripes, another Massachusetts’ state flag. Over the last several years, Boston city officials have allowed some 284 private groups to fly their flag on the third pole — for Veterans Day, Pride Month or various cultural events and communities.

In July 2017, Harold Shurtleff filed a request with the city of Boston to fly a “Christian flag,” one designed with a white banner bearing a red Latin cross and adopted by many traditions as a symbol of U.S. Protestant Christian faith.

Shurtleff is the founder and director of Camp Constitution, whose stated mission “is to enhance understanding of the country’s Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise.”

The city denied Shurtleff’s application, the first denial in over hundreds of applications. The city said its policies forbid promotion of religion on its flagpoles and that doing so would violate separation of church and state.

Shurtleff sued, the city prevailed in the district court and the U.S. Court of Appeals for the First Circuit. The case ran all the way up the appeals flagpole to the U.S. Supreme Court and was argued on Jan. 18, 2022.

On Monday, SCOTUS ruled unanimously that flying the “Christian flag” should not be considered government speech since the flag belonged to a private organization. Thus, Boston’s city government was held to have violated Shurtleff’s free speech rights when it denied his request to fly the “Christian flag.” Boston must now permit Camp Constitution to fly its flag outside City Hall.

Experts are now parsing out how the decision could set precedent for religious expression on government properties across the U.S.

Related stories:
Potential sources and experts:
  • Steven K. Green

    Steven K. Green is a law professor at Willamette University in Salem, Oregon. He has written law review articles about the church-state issues that voucher programs raise and has filed amicus briefs in both the Florida and Cleveland school voucher cases.

  • Douglas Hallward-Driemeier

    Douglas Hallward-Driemeier leads law firm Ropes & Gray’s appellate and Supreme Court practice. He has presented nearly 100 appellate arguments, including 18 times before the U.S. Supreme Court and before every federal circuit court of appeals. He advocated for the respondents in Shurtleff v. Boston.

  • Farrah Raza

    Farrah Raza is a  lecturer in public law at Pembroke College, University of Oxford. Her research includes law and religion, public law, human rights and discrimination law.

  • Religious Liberty Initiative

    The Religious Liberty Initiative at the University of Notre Dame School of Law promotes religious freedom for people of all faiths through scholarship, events and the Law School’s Religious Liberty Clinic.

  • Mark Satta

    Mark Satta is a professor of philosophy at Wayne State University. He focuses on epistemology, philosophy of language and philosophy of law.

  • Mathew D. Staver

    Mathew D. Staver is an American lawyer and former Seventh-day Adventist pastor. Formerly, he was dean of Liberty University’s Law School. He founded Liberty Counsel in 1989 and serves as chairman. He advocated for Harold Shurtleff in Shurtleff v. Boston.

Kennedy v. Bremerton School District

Joseph Kennedy is a high school football coach. Kennedy is also a Christian.

Pulling from both playbooks, he made it a habit to pray at the 50-yard line at the conclusion of team games.

Bremerton School District, where Kennedy was employed, told the coach this violated school policy. They required him to cease his midfield prayers to not violate the Constitution’s establishment clause.

Kennedy made it clear he would not comply, and when the suburban Seattle district tried to negotiate, Kennedy took a stand — or, rather, a knee — praying on the field after two additional games. He was then placed on administrative leave. In turn, he sued the school on the basis of free speech.

The case made its way through the appeals system and the U.S. Supreme Court decided to tackle the case and offer a ruling on religious expression in public schools. Oral arguments were delivered on April 25, 2022. During the proceedings, Justice Stephen Breyer remarked that while there have been numerous rulings on prayer in schools before, this case “seems like a line-drawing problem.”

Justices are now considering where to draw that line or whether to move the goal posts yet again on prayer in public schools. At issue is whether a public-school employee who prays at school and is visible to students is engaged in government speech that lacks First Amendment protection, regardless of how long, short, private, loud or quiet that prayer is. Also to be considered is whether, assuming that such private action is protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit religious expressions.

The court is expected to rule in Kennedy v. Bremerton School District early this summer.

Related stories:
Potential sources and experts:
  • Katherine M. Franke

    Katherine M. Franke is a law professor at Columbia University, where she also serves as faculty director of the Law, Rights and Religion Project.

  • Richard B. Katskee

    Richard B. Katskee is legal director at Americans United for Separation of Church and State and is the attorney representing the suburban Seattle school district in Kennedy v. Bremerton.

  • Rachel Laser

    Rachel Laser is the president and CEO of Americans United for Separation of Church and State, an advocacy organization that seeks to reduce entanglement between the government and faith groups. She previously served as deputy director of the Religious Action Center of Reform Judaism, where she worked on social justice issues, including gun control, abortion rights and reproductive rights. Arrange an interview through Liz Hayes.

  • Ian Millhiser

    Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States.

  • Kelly J. Shackelford

    Kelly J. Shackelford is president and CEO of First Liberty Institute.

  • Nomi M. Stolzenberg

    Nomi M. Stolzenberg holds the Nathan and Lilly Shapell Chair in Law at the USC Gould School of Law. Her research spans a range of interdisciplinary interests, including law and religion, cultural pluralism, law and liberalism, and law and literature. She helped establish the USC Center for Law, History and Culture.

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