All but overshadowed by the U.S. Supreme Court’s dramatic elimination of nationalized abortion rights, the just-concluded term was vital in terms of how the Constitution applies to religion.
There were moments of unity. The Court’s liberals joined emphatic rulings that Boston must allow the Christian flag to be shown on the same terms as other displays, and that a death-row inmate is entitled to religious ministrations.
But then there were two highly contentious rulings, both in June.
The high Court said a football coach is free to openly pray on the field after games and that a Maine program must include sectarian high schools if it pays tuition for other non-public campuses. That second decision explicitly erased key doctrine on what constitutes an “establishment of religion” that the Constitution forbids.
The current Court has become “exceedingly accommodating of people’s religious views,” and is “blowing a hole in the wall between church and state,” summarized the displeased New Yorker magazine.
Reporters should be watching one conservative faction’s hope for more radical renovation on the “establishment” clause. The Religion Guy learned about this, of all places, in a June 28 Rolling Stone item about the friend-of-the-court brief filed in the football prayer case, Kennedy v. Bremerton, by the group America First Legal. AFL became a player in the political litigation game only last year.
Where to begin? Repeat after me: “incorporation” and “disincorporation.”
No, not the formation and dissolution of a business, but an extremely important and often overlooked doctrine in Constitutional law. Simply put, the Supreme Court has extended the rights guaranteed in the First Amendment to cover all the states because — believe it not — the U.S. Constitution as written involved only the federal government.
The first incorporation decision was in the 1925 Gitlow case, when it required New York State to recognize freedom of speech, followed by the Near case (Minnesota, press freedom, 1931), De Jonge (Oregon, freedom of assembly, 1937) and Edwards (South Carolina, petitioning government, 1963).
With the two religion clauses, the Cantwell opinion (1940) incorporated “free exercise” into states' law in a Connecticut Jehovah’s Witnesses case, and Everson (1947) did the same with banning “establishment of religion” although the Court did allow New Jersey’s tax aid for busing to religious schools. The Court said federal and state laws cannot “aid one religion, aid all religions, or prefer one religion over another.”
The 1971 “test” in the Lemon ruling, now abolished by the 2022 ruling, said that to avoid an “establishment” violation, aid to religion must have a “secular purpose” and a “primary effect” that neither advances nor inhibits religion, and avoid “excessive government entanglement” with religion.
The Court’s new majority opinion in Kennedy v. Bremerton reshapes limits on the “establishment” clause. The brief filed by AFL contended that “misinterpretations of the Establishment Clause have been threatening the rights of religious believers in this country for decades.” It said the “original meaning” in the Constitution was to prohibit federal laws that either “establish or dis-establish churches in the states.” Therefore the Supreme Court “should overrule its incorporation of the Establishment Clause” and end such improper impositions on the states.
This is obviously a fringe concept at this point. But ear-to-the-ground Axios reporter Jonathan Swan told a CNN panel that the young AFL requires attention because it stands “at the center of the emerging conservative infrastructure.”
AFL’s founder is non-lawyer Stephen Miller, best known for immigration restrictionism as a senior advisor to senator (later Attorney General) Jeff Sessions and President Donald Trump. It’s interesting that Miller is Jewish given that most Jewish organizations favor strict “separation of church and state” because of the establishment clause. Other Trump administration figures with AFL include White House Chief of Staff Mark Meadows, Acting Attorney General Matthew Whitaker (but not AG's Sessions and William Barr) and Russ Vought, director of the Office of Management and Budget.
The first source for reporters looking at all this will be AFL General Counsel Gene P. Hamilton (gene.hamilton@aflegal.org and 202–964–3721). He was a counselor to the U.S. attorneys general throughout Trump’s term.
You’ll have no trouble finding legal thinkers that will be alarmed to think that the 50 states should be able to create their own laws on what the establishment of religion means. And be sure to ask Hamilton if the theory means the states should also gain the power to restrict religious freedom.