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Tipsheet

The Supreme Court's Leftist Bloc: Increasingly Hostile to the First Amendment

AP Photo/J. Scott Applewhite

We already knew that the Supreme Court's leftist bloc is profoundly hostile to the Second Amendment, which it has badly misinterpreted in a series of decisions over recent decades. They're increasingly and disturbingly hostile to the First Amendment, as well. The Roberts Court has generally been quite good on First Amendment issues, issuing a number of lopsided or even unanimous rulings safeguarding various liberties in this realm. But on cases ranging from Hobby Lobby to NIFLA v. Becerra in previous terms – to Carson v. Makin and Kennedy v. Bremerton this term – core First Amendment protections have broken down along ideological lines. The "progressive" justices are frighteningly open to government coercion in the areas of free speech and especially religion. They envision an America in which the "separation of church and state," which appears nowhere in the Constitution, is robust and discriminatory against religion. As the phrase goes, our founding document enshrines freedom of religion, not freedom from religion. But the left flank of the Court appears hellbent on enforcing a secular society, in which people of faith must confine said faith to restricted areas of their lives. The First Amendment came first for a reason, and within the amendment, religious liberty is at the front of the list. Now consider this:

In Hobby Lobby, four liberal justices (at the time) ruled (in dissent) that a family-owned, privately-held company must be forced, via new Obama administration regulations, to provide employees with access to 20 different contraceptives. The craft store company, owned by Christians, didn't object to 16 of the 20 but took issue with four of them. The Democratic administration fought them in court, just as they battled Catholic nuns over a similar issue. The Supreme Court ruled 5-4 in favor of the Christian family's business decision, but the split was close.

In NIFLA v. Becerra, another 5-4 case, decided in 2018, the minority liberal justices sided with a California law that would have forced pro-life pregnancy centers – whose entire mission is to help provide counseling and resources for women to choose against abortions – to advertise referrals for abortion services. The Court's (then) five conservatives ruled that the state's government couldn't force an organization to engage in speech that runs directly counter to its mission, and that "private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs," per the Becket center. Astoundingly, one more Democratic appointee would have tipped the case in favor of government-compelled speech. This is a deeply illiberal and anti-constitutional view, defeated by a single vote.

In the current term, the Court has decided (6-3, now that there is one less liberal justice on the bench) that the state of Maine cannot discriminate against religious schools in a state-provided voucher program for families who lack access to public schools in their remote communities. Prior to the ruling, the state provided taxpayer-funded vouchers so parents could send their kids to private schools of their choice in these areas, but explicitly carved out religious institutions as disqualified from the program. This constituted unlawful discrimination, the majority found. The three liberals disagreed, maintaining their lurch toward zealous, government-enforced secularization. It looks like more litigation may be coming on this case, as Maine is fighting for a backdoor method of reimposing its unconstitutional discrimination. And yesterday brought the "Coach Kennedy" ruling. Here are the facts of the case, as described by Becket: 

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For eight years, Coach Joseph Kennedy helped lead the football team at Bremerton High School, a public school in Washington. Win or lose, Kennedy would walk to the 50-yard-line after the game, kneel for a few seconds, and thank God in quiet prayer. Eventually, some players asked if they could join Coach Kennedy. He told them, “This is a free country,” and “You can do what you want.” The students soon noticed the tradition and would voluntarily join the coach on the field for an uplifting and unifying message, inviting players from opposing teams to listen in. Despite receiving an outpouring of support for allowing Coach Kennedy to continue expressing his faith, the school district demanded Kennedy stop praying where anyone could see him because some onlookers might be offended and see it as an unacceptable school “endorsement” of religion. While the school district had no problem with Coach Kennedy inspiring his students, the school district soured on it altogether when it learned that Kennedy did so through prayer. Coach Kennedy refused the school’s censorship and was no longer welcome as part of the coaching staff.

A lower court, the infamous Ninth Cirucit, actually ruled that the school district had to ban the coach from conducting his voluntary post-game prayers. After years of litigation, SCOTUS finally disagreed, siding with Mr. Kennedy. Justice Gorsuch wrote for the majority

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Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

The Supremes held that "the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression." Again, the Court's liberals dissented. I am not a constitutional scholar, and I'm certainly no lawyer. I'm simply a legal layman and an informed citizen. Let's look at the text of the First Amendment, as it pertains to religious liberty: 

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here we see the establishment clause and the free exercise clause. The Constitution prohibits the state from setting up a government religion, which was a common practice at the time of the founding (and several individual states maintained state-level official religions for years after the Constitution was ratified). It also guarantees Americans' freedom to practice their religious beliefs, free from state prohibition. Is the state of Maine allowing families (without access to government-run schools) to use taxpayer-funded school vouchers to send their own children to religious schools of their choosing tantamount to the government "establishing" a religion? Does a high school football coach engaging in a voluntary moment of public prayer after games mean that the school district, and therefore the government, has erected an official religion? Again, as a layman, the answer to these questions is pretty clearly "no." On the other end of the equation is the free exercise component. Has the Court protected the rights of Maine parents and Coach Kennedy to freely exercise their faith? It seems to me that answer is a similarly obvious: Yes.

I understand that there are nuances to all of this, and it's not quite as cut-and-dried as I'm making it out to be. But fundamentally, I do believe it's rather straightforward. I've highlighted these four cases off the top of my head, and there are surely others that touch on these crucial questions. In other words, this is not a comprehensive list by any means. But these particular rulings are both reassuring and disturbing. They're reassuring because the plain meaning of the First Amendment prevailed in all four instances. They're distressing because the splits were close and ideological. Much attention has been paid to last week's SCOTUS decisions on guns and abortion, and understandably so. But there are many other high-stakes areas in which the justices have the final say. Democratic-appointed judges have made clear that they do not believe either of the first two amendments to the US Constitution mean what they say, based on how they were understood at the time of their adoption. This is why elections matter so much, why confirmation fights are so significant, and why these issues must remain on the front burner for Americans who care about our natural, constitutionally-guaranteed rights. 

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