As 2023 gets underway, some of the most significant religious liberty questions I will be watching emerged from the tumultuous headlines of 2022. Many of the biggest stories of the year were driven by the U.S. Supreme Court, which demonstrated a willingness to overhaul long-standing law – not only traditional areas of church-state law, but also other areas of law that have an impact on religious liberty.
Here are my top 10 religious liberty stories of 2022 and some of the questions they leave unanswered for this new year.
- Kennedy v. Bremerton: Supreme Court upends religious liberty protections for students, sides with football coach
In June, the Courrt ruled in favor of former high school football coach Joseph Kennedy, finding that his school district cannot bar his practice of praying at the 50-yard line immediately after games while he is still on duty. Central to the 6-3 majority opinion, written by Justice Neil Gorsuch, was the conclusion that Kennedy’s prayers were conducted in his private, personal capacity and not his government role, despite his ongoing duties after the game as a public school employee. As BJC General Counsel Holly Hollman explained following the ruling, that determination “flies in the face of decades of decisions that have allowed students to enjoy their religious freedom rights without fear of school-sponsored religious practices.”
The Court’s finding that Kennedy was not acting in his official capacity raises questions going forward about when a public school teacher or administrator can ever be held accountable for leading religious activity in the classroom, a place of traditionally strong protections against religious pressures for students. As BJC Executive Director Amanda Tyler lamented following the ruling, the Court “focused solely on the religious exercise of one public school employee and not the kids and families, focused only on the free exercise/free speech clauses while severely limiting the Establishment Clause and its important protections for religious freedom.”
An even larger question looms because the Court also used this case to reject a decades-old judicial test for examining Establishment Clause cases. The Lemon test looked to whether a government action has the purpose or effect of advancing religion; whether it gives the appearance of endorsing religion; and whether it excessively entangles religion and government. In abandoning the Lemon test, the Court in Kennedy v. Bremerton left lower courts with little guidance on how to adjudicate Establishment Clause claims. Watching the outcome and reasoning in such cases will be important in 2023.
- Carson v. Makin: Supreme Court rules for the first time that a state’s tuition assistance program must fund religious education
That same month, on a 6-3 vote, the U.S. Supreme Court issued a troubling decision requiring Maine to include religious schools in its government-funded tuition assistance program. Chief Justice John Roberts’ majority opinion struck down the program’s long-standing requirement that funds must be used only for secular education to comply with state law. In its ruling, which Tyler called a “blow” to religious freedom, the Court sidestepped concerns raised by Maine officials and religious liberty advocates – including BJC – that supporting religious education with taxpayer dollars undermines historic principles of church-state separation that states should have the leeway to protect.
How courts will apply this decision to other state funding restrictions remains an important question going forward. As Justice Stephen Breyer asked in his dissenting opinion, must a school district that pays for public schools now fund parents who prefer a religious education? After this decision, what religious funding can a state still deny to safeguard against entangling the taxpayer with religion?
For more on this case and its ramifications, listen to BJC’s podcast on the oral arguments and access BJC’s brief and other resources at BJConline.org/CarsonvMakin. My earlier post on the decision is here.
- Growing number of advocates join the fight to expose the dangers of Christian nationalism
Regular readers know that Christian nationalism has been a common topic of discussion and a consistent area of concern for BJC during the past few years. 2022 seems to be the year that recognition of this threat to our democracy reached a wider national audience. In February, BJC and the Freedom From Religion Foundation issued a comprehensive report detailing the role Christian nationalism played in the January 6, 2021, attack on the Capitol and the events leading up to it. Christian Nationalism and the January 6, 2021, Insurrection provides detailed and documented evidence of the extent of Christian nationalism throughout multiple elements of the attack, including the pervasive symbols, signs and iconography in the crowd. There is at least some evidence that Congress has taken this warning seriously. In December, a subcommittee in the U.S. House of Representatives held a hearing on emerging white supremacist ideologies. At the hearing, BJC’s Amanda Tyler explained the relationship between white supremacy, Christian nationalism, and the ongoing threats to our democracy.
Polls show that a majority of Americans disapprove of Christian nationalism, but the ideology continues to motivate much of today’s political discourse. As Tyler pointed out in June 2022, former President Donald Trump continues to rely on themes of Christian nationalism to advance the “Big Lie” that President Joe Biden did not win the 2020 presidential election. Elected representatives continue to openly espouse Christian nationalism ideologies and even embrace the label itself.
To learn more about Christian nationalism and to make your voice heard on this critical issue, join the tens of thousands of Christians who have signed on to the Christians Against Christian Nationalism statement and access resources there. The question remains: How will this new level of national attention to the issue play out in 2023?
4. Dobbs v. Jackson: Supreme Court overturns Roe v. Wade, new religious liberty challenges to state abortion restrictions emerge
In June, the Supreme Court issued its ruling in Dobbs v. Jackson, overturning Roe v. Wade and along with it the federal constitutional right to an abortion. While not a case directly addressing religious liberty law – in fact, the majority opinion avoids mentioning religion at all – Dobbs and its aftermath have reiterated how intertwined with religion abortion debates can be. (On BJC’s Respecting Religion podcast, Amanda and Holly discuss this point in more detail.) The ruling also has religious liberty implications, reflected in the number of new lawsuits arguing that abortion prohibitions violate certain religious freedom protections. 2023 should give us an initial insight into how courts will handle such claims.
- Litigation continues over COVID-19 vaccine mandates while the administration and Congress lift the mandate for military personnel
Plaintiffs representing U.S. military personnel who object to the COVID-19 vaccine mandate on religious grounds will continue prosecuting their cases, despite action late in the year by Congress lifting the mandate.
President Biden reportedly agreed to end the mandate, which he supports, to win support among some Republicans for the annual legislation that funds the military. During 2022, numerous courts questioned whether the military’s method of processing requests for religious exemptions sufficiently protected the rights of personnel under the Religious Freedom Restoration Act (RFRA). In November, for example, the 6th U.S. Circuit Court of Appeals upheld an injunction halting the Air Force from disciplining personnel who sought religious exemptions, pending the outcome of a suit filed under RFRA. Responding to emergency applications, the U.S. Supreme Court declined to intervene on behalf of an unvaccinated Air Force officer while it stepped in to allow the Department of Defense to reassign Navy Seals who refused vaccination. In 2023, will courts continue to allow these suits to go forward? Will they be dismissed as moot in light of the end of the military mandate?
Meanwhile, employees in numerous other fields all across the country continue to litigate requirements that they receive the COVID-19 vaccine. The outcome in each case is highly dependent on the specific facts of each dispute, the nature of the work, how the employee handles other exemption requests, and whether employees are offered a reasonable employment alternative.
- Ramirez v. Collier: U.S. Supreme Court rules in favor of death row inmate requesting permission for spiritual adviser to lay hands, pray audibly with him in execution chamber
In March, the Supreme Court issued a ruling in Ramirez v. Collier, a case brought by a death row inmate challenging the Texas Department of Corrections’ refusal to allow his spiritual adviser to lay hands on him and pray audibly in the execution chamber during his final moments. The majority opinion, written by Chief Justice John Roberts, held that an injunction against the state was appropriate because Texas was not likely to meet its burden under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to demonstrate that the regulation barring such activities was necessary to achieve its safety interests.
- Ketanji Brown Jackson joins U.S. Supreme Court
In April, Ketanji Brown Jackson was confirmed by the Senate to join the U.S. Supreme Court, replacing retiring Justice Stephen Breyer. In June, she was sworn in, becoming the first Black woman to serve on the Court. With a shift occurring in church-state law, Justice Jackson joins the Court at a time when many religious liberty protections appear particularly fragile – especially those relying on a robust Establishment Clause. Her confirmation hearings during the summer included little substantive conversation about religious liberty (though Sen. Lindsey Graham, R-S.C., did offer a totally inappropriate query about her personal commitment to her faith), but she did mention the importance of the Establishment Clause in one of her answers. Although she will not likely change the balance of the Court from an ideological perspective, Justice Jackson has already demonstrated a capacity to bring a sharp historical perspective to her questioning just three months into her tenure.
- War in Ukraine threatens religious liberty
Russia’s invasion of Ukraine, which began in February, rightly dominated headlines throughout 2022. While not primarily a religious liberty story, the war on Ukraine demonstrates the fragility of religious freedom around the world. As I wrote back in March, Russian occupation would – among other humanitarian disasters – devastate the hard-won religious freedoms of the Ukrainian people. Russia is on the U.S. State Department’s Special Watch List because it “engages in or tolerates severe violations of religious freedom.” As detailed in its report, religious persecution in a variety of forms is rampant in Russia, a reminder that the battle for control is not just a dispute over boundaries and political leadership, but the battle will impact fundamental human rights of conscience.
- President Biden signs Respect for Marriage Act, BJC’s Hollman praises law as ‘affirmation of religious freedom’
In December, President Biden signed the historic Respect for Marriage Act, which requires states to recognize marriages that are lawfully performed in other states, including same-sex and interracial marriages. The new law ensures that such marriages would remain protected if the U.S. Supreme Court overturns decisions guaranteeing the right to same-sex marriage (Obergefell) and interracial marriage (Loving). As BJC General Counsel Holly Hollma explained in a statement lauding the bill’s enactment, the Respect for Marriage Act is a historic achievement for both marriage equality and religious freedom, “advanc[ing] protections for civil marriage without sacrificing the distinctiveness of religious marriage.”
- Shurtleff v. City of Boston: U.S. Supreme Court rules Boston’s exclusion of Christian flag from flag-flying program violates First Amendment’s Free Speech clause
In May, the Supreme Court issued its ruling in Shurtleff v. City of Boston, striking down a policy that prohibited the Christian flag from flying at Boston City Hall but did allow other outside groups to raise flags. The Court held that the program did not amount to government speech but that the flags were private speech and thus subject to Free Speech protections. It was not a religious liberty case, nor was the 9-0 ruling a surprise. The case did reiterate that local governments can shape their own speech avoiding religious messages without running afoul of the First Amendment, but they have to be careful about what they claim to be government speech. The majority opinion, which was written by retiring Justice Breyer, concluded that Boston’s policies did not support the city’s contention that the flag-flying program is an example of the government controlling its own message.