Andrea Picciotti-Bayer
On September 17, 1787, after protracted disputations, members of the Constitutional Convention gathered in Philadelphia and signed the final draft of the document that became the Constitution of the United States of America. With this document and its first set of amendments, ratified in 1791, the framers were taking the unprecedented step of making the new republic a laboratory for religious liberty.
Indeed, the majority of the framers were so committed to this principle that they denied any future government the right to interfere in religious matters. The original Constitution prohibited the imposition of any religious test as a qualification for federal office, and the First Amendment barred Congress from establishing religion or prohibiting free exercise. These restrictions originally applied only to the national government. But they set a new standard that influenced state politics and, in the 20th century, was guaranteed to Americans wherever they lived.
Those extraordinary developments should lie at the heart of our celebration of Constitution Day. Now more than ever, because the Constitution's 236-year-old protection of religious liberty is under renewed threat from partisans on both the political left and right – so much so that the Supreme Court has repeatedly had to step in to halt outrageous attacks on freedoms of worship, belief, and the ability to live a religious life while participating in civil society.
In these legal cases, the threat has come from a progressive left whose dogma is alarmingly embedded in the federal government, our public schools, major corporations and, of course, universities. But there is also a less publicized academic and political threat from the right. Let's first look at the progressive assault on religious freedom.
For many Americans, a house of worship is like a second home. Churches, synagogues, and mosques were a refuge during the pandemic, places of consolation and encouragement through difficult times. In cases involving draconian restrictions on worship, the Supreme Court eventually struck down rulings by New York and California that banned religious gatherings but allowed people to shop freely. “Even in a pandemic,” explained the Court in the New York case, “the Constitution cannot be put away and forgotten.” Remember those words. The highest court in the land affirmed that the guarantees of the Constitution couldn't be ignored, even in the extraordinary circumstances of a global pandemic. Unfortunately, hardline progressives continue to think that their slighting assessment of houses of worship as nonessential institutions – equal or inferior to enterprises such as restaurants, amusement parks, casinos or big box stores – trumps these guarantees. And so the Court has had to say it again and again.
Consider, for example, the case of Joseph Kennedy, a high school football coach, who was told by school officials that he could not pray on the field after games. In its opinion, the Court explained that the Free Exercise Clause provides robust protection not only for “the right to harbor religious beliefs inwardly and secretly,” but also for “the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.’” Kennedy was using time that coaches were permitted to use to make personal phone calls and socialize for prayer.
Another case decided this past summer affirmed Americans’ liberty not only to think as they wish, but also to act in a manner consistent with their beliefs. Lorie Smith, a Christian website designer, wanted to expand her business to offer wedding websites for couples celebrating traditional marriage. Smith went to court, concerned that Colorado’s Anti-Discrimination Act (CADA), a broad public accommodations law outlawing discrimination based on sexual orientation, could compel her to design websites for same-sex weddings.
Smith explained that she couldn't use her expressive talents to provide unique, branded services celebrating unions that were at odds with her beliefs. The Supreme Court ruled that CADA violated the Court’s long-standing precedents prohibiting government-compelled speech. Justice Neil Gorsuch, writing for the Court's majority, noted that while public accommodation laws have “have done much to secure the civil rights of all Americans” this case was different. “Colorado does not just seek to ensure the sale of goods and services on equal terms. It seeks to use the law to compel an individual to create speech she does not believe.” A couple of years earlier, the Court was forced to address the scandal of government officials in, ironically, Philadelphia, who attacked the Archdiocese of Philadelphia’s right to provide foster care for children, making it conditional on Catholic foster agencies rejecting Church teaching on the nature of marriage. In a unanimous opinion, the Court allowed children from troubled backgrounds in Philadelphia to once again benefit from a tradition of Catholic foster care in the city that dates back more than 200 years. The Constitution’s care for religious freedom isn’t limited to the marriage debates. It also protects churches and church-run schools from attempts to interfere with their personnel decisions. Once again, it is thanks to the current Supreme Court that this protection survives.
For instance, the Court has made clear that the Establishment Clause and Free Exercise Clause grant religious bodies autonomy when it comes to hiring and firing employees whose jobs can be considered to be "ministerial.” This category extends beyond ordained ministers. For example, the overwhelming majority of Catholic school teachers are not clergy or religious. But their mission is "ministerial,” in the sense that they are required to uphold and promote a set of religious teachings, even while they're teaching something as secular as mathematics.
Since 2012, the constitutional right of religious institutions to hire and retain in ways consistent with their missions has been recognized as the “ministerial exception.” In 2020, the Court explicitly applied this doctrine to Catholic parochial schools. Justice Samuel Alito, writing for the majority, explained:
The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.
At a time when our public schools seem to be drifting into deep progressive waters, religious schools–and the parents who send their children there for instruction–need the ministerial exception more than ever. As parents demand alternatives to public schools, states are starting or expanding initiatives to lessen the economic burden of school choice. The Supreme Court has confirmed that religious schools must not be excluded from these initiatives: it told Maine that excluding religious schools from a voucher program violated the Constitution. Now, depressingly, the state is trying to use its broadly defined anti-discrimination rule to target religious schools that impart traditional teaching on human sexuality. But parents are not fooled. They are going back to court.
Maine is not the only state that seems incapable of understanding that religious schools can’t be excluded from otherwise universal programs. When children with special education needs in California can’t be served by their public school, parents can be reimbursed for the cost of an appropriate private school. Unless, that is, the school is deemed “sectarian.” A group of Orthodox Jewish parents and schools are challenging California’s exclusionary rule in court. The Ninth Circuit court of appeals is reviewing their case. As for parents who keep their children in public schools, they also have recourse. As long ago as 1925, the Court spelled this out with beautiful clarity: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Consistent with this eternal truth, many parents want to know what their children are being taught–and pushing back against indoctrination. They should feel confident in doing so. Under long-standing Supreme Court precedent, government schools are not “empowered … to ‘save’ a child from himself or his [religious] parents” by imposing “compulsory” education to “influence … the religious future of the child.”
A multi-faith group of parents in Montgomery County, Maryland, is leading the charge. These parents of preschool and elementary school students from different faith traditions don’t want their youngsters exposed to “Pride Storybooks” – a collection of books that brazenly promote gender ideology and sexual activity. The parents demand the right to opt their children out of lessons at odds with their family’s religious teaching. They are ready to go all the way to our nation’s highest court to have their rights vindicated. And here is the rub.
As a result of the Court’s commitment to safeguard what is guaranteed in the Constitution, it is under attack. In the past, those on the left tried to game the system by embracing a malleable theory of “living constitutionalism” in order to elevate their preferred rights above those specifically enumerated in the Constitution, often displaying a reflexive hostility toward religion. Today’s progressives on the left have new tricks up their sleeves. In addition to continued demands for a strict separation of church and state that significantly limits free exercise, they seek to undermine the Court itself.
One proposal to overcome judicial resistance is to expand the number of justices on the Court, creating a progressive majority. Another option is to fight dirty, and that is already happening. Individual justices have been harassed and threatened after the Court overruled Roe v. Wade. This summer, progressives levied trumped-up charges of unethical behavior directed at stalwarts for religious freedom – Justices Clarence Thomas and Samuel Alito – in an attempt to force their resignations, initiate impeachment proceedings, or make these jurists recuse themselves from crucial cases. Most recently, an opinion piece in Slate Magazine suggested that Congress reduce the number of authorized judicial clerks “to signal its disapproval of judicial imperialism while making imperial decisions harder to engage in.” Talk about sore losers.
But it's not only left-wingers who are attempting to undermine Americans' unique legacy of religious freedom. The so-called “New Right” – a group of social media personalities with footholds in academia and journalism – are about 30 years behind the progressive left in their effort to control the Court. They propose that judges at all levels of the judiciary should be activists – entrusted not simply with interpreting the Constitution as written but also with a charge to advance the “common good” as they define it.
Critics have denounced this end-run around electoral and legislative processes as authoritarian and perhaps even totalitarian. Joel Alicea, Professor of Law at Catholic University, offers a different defense of the Constitution from a natural law perspective. He notes that “under well-established natural-law principles, political authority – that is, the power to make and enforce laws and resolve legal disputes – is essential to secure those conditions that allow for human beings to flourish, conditions that we might call ‘the common good.’” He adds that “in the natural-law tradition, ultimate political authority is vested in the people of a society, and part of that authority is the power to constitute a government. Within the broad parameters of the natural law, the people have discretion in allocating authority within a regime to secure the common good, which the American people did by ratifying the Constitution.”
Alicea offers an important reminder that is worth restating: the job of a judge is to the stick to the Constitution as it was understood when it was ratified, not to impose their own beliefs, however appealing they may be in themselves. And, as we have seen in recent years, when the Supreme Court has a majority of justices committed to originalism, religious freedom triumphs.
Constitution Day offers lovers of freedom the invitation to double down in our defense of the Constitution and the freedoms guaranteed therein, particularly religious freedom. And we must also defend this Supreme Court, whose majority in recent years has ruled in favor of the flourishing of faith in public life. This flourishing is consistent with the Constitution. Not coincidentally, it also enriches our country.
Andrea Picciotti-Bayer is director of the Conscience Project.