“An Establishment Clause jurisprudence in shambles.” That’s how Supreme Court Justice Clarence Thomas described recent religious liberty decisions in a 2011 dissent. And it’s no wonder. For the past half-century, winning a Supreme Court case on religious liberty depended on who could muster five votes on the Court.
Hostility Toward Religion
Throughout the 1960s, ’70s, and ’80s, Supreme Court decisions seemed to show hostility toward religion, prohibiting some forms of school prayer and Bible reading and even prohibiting the display of the 10 Commandments in schools.
From Hostility to Confusion
As the Court progressed into the 1980s and ’90s, its Establishment Clause decisions were more mixed. In 1984, the Court allowed public nativity displays, prohibiting them just a few years later. In 2005, it prohibited a 10 Commandments courthouse display while simultaneously allowing one on the Texas capitol lawn.
From Confusion to Equal Treatment
With the three Trump appointees to the Supreme Court, the Court's hostility toward religion has moderated. During the 2022 term, the Court issued three Establishment Clause decisions. In Shurtleff v. City of Boston, the Court unanimously held that if Boston allows other organizations to fly their flags on the city park flagpole while they are holding activities in the park, they must allow a church to do the same. In Carson v. Makin, the Court held that if the State of Maine provides funding for parents who send their children to private schools, they cannot withhold funding from those who send their children to religious schools. In Kennedy v. Bremerton School District, the Court held that the school district may not prohibit a football coach from praying on the 50-yard line after football games if they allow others to speak on nonreligious themes.
These decisions have a common thread: State agencies may not discriminate against religious people or religious expression. The principle of equal access for religion must be honored.
From Equal Treatment to Benevolent Neutrality
The 2023 term saw further changes. In Groff v. DeJoy, the Court ruled that a postal employee whose religion prohibits him from working on Sundays must be accommodated by not scheduling him for Sunday work unless that accommodation would work an undue hardship on the employer. And in 303 Creative v. Elenis, the Court ruled in favor of a Christian who creates wedding websites, holding that 303 Creative cannot be compelled to violate their religious convictions by creating a website that celebrates and promotes same-sex marriage.
Now, the Court is saying religion must be given not just equal treatment but preferred treatment. After all, the First Amendment does not protect free exercise of shopping, sports, or business; it protects the free exercise of religion.
And Now What?
Where does the Court go from here?
In the Kennedy case cited above, Justice Gorsuch said Establishment Clause decisions must "accord with history and faithfully reflect the understanding of the Founding Fathers." And so, the Foundation for Moral Law has presented to the Supreme Court a case that, we hope, will enable the Justices to return to the Framers' intent.
The case is Spell v. Edwards and involves 2020 executive orders Louisiana Gov. John Bel Edwards issued during COVID. These orders prohibited churches from assembling with over 10 people. Pastor Tony Spell decided he must "obey God rather than men" (Acts 5:29) and was charged with several misdemeanors for leading worship services at the 2,000-member Life Tabernacle Church.
Represented by the Foundation for Moral Law, Spell defended against the charges in state court while also challenging the governor's orders in federal court.
The Louisiana Supreme Court quashed the charges against Spell because of Sec. 736.D of the Louisiana Health Emergency Powers Act, which says, "Nothing in this Chapter shall be interpreted to diminish the rights guaranteed to all persons under the Declaration of Rights of the Louisiana Constitution or the Bill of Rights of the United States Constitution." (A similar protection is needed in the Alabama Emergency Management Act, so contact your legislators!) Noting that the executive order placed churches under a 10-worshipper limit but allowed grocery and liquor stores to exceed it, the Court said, "What defendant [Spell] seeks -- and what our Constitution ensures -- is that his religious activities be treated no differently than comparable secular activities."
A Question of Jurisdiction
This was a victory for religious freedom. But Spell and the Foundation attorneys believe simple equality does not go far enough. So we have filed a petition for writ of certiorari with the U.S. Supreme Court, arguing that the Framers understood church and state as separate kingdoms or jurisdictions, an understanding derived from the Bible.
As we observe in our Petition, the kings of Old Testament Israel came from the Tribe of Judah, while the priests came from the Tribe of Levi. These were separate offices and separate jurisdictions, with both deriving authority from God and both subject to His Law. Responding to the Pharisees in Matthew 22:21, Jesus Christ strengthened this principle, a fact recognized by Lord Acton:
"When Christ said: ‘Render unto Caesar the things that are Caesar's, and unto God the things that are God's,’ those words, spoken on His last visit to the Temple, three days before His death, He gave to the civil power, under the protection of conscience, a sacredness it had never enjoyed, and bounds it had never acknowledged; and they were the repudiation of absolutism and the inauguration of freedom.”
As we further note in our Petition, Augustine also recognized these two kingdoms in Civitas Dei. Augustine influenced Martin Luther, a leader of the Protestant Reformation, who said of Church and State,
"...these two kingdoms must be sharply distinguished, and both be permitted to remain; the one to produce piety, the other to bring about external peace and prevent evil deeds; neither is sufficient in the world without the other."
The colonial settlers and the Framers of our Republic lived in the shadow of the Reformation. As we note in our Petition, Jefferson's 1804 reference to a "wall of separation between church and state" from his letter to the Danbury Baptists supports this. James Madison's 1785 Memorial and Remonstrance Against Religious Assessments does as well. Noting that Christianity is "the Religion which we believe to be of divine origin" which enjoys the "patronage of its Author,” Madison implied that Christianity does not need the aid of the State. In these writings, the founders were echoing the “two kingdoms” theology of a 3,000-year Judeo-Christian tradition.
Let’s pretend the shoe was on the other foot with Spell ordering the closure of all state offices because of COVID. Many would wonder how he believes he has the authority to do so! Thus, just as the Church doesn’t have authority to close State offices, so the State doesn’t have authority to close the Church.
A long shot? Perhaps. The Court accepts less than 1% of cert petitions. But the Court has set the case for conference on Sept. 26. The outcome could set a new direction for religious liberty.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (www.obcl.edu) and as Senior Counsel for the Foundation for Moral Law (www.morallaw.org). Those who have constitutional concerns may contact the Foundation for Moral Law at (334) 262-1245.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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