In this recent post on the Roe v. Wade decision I discussed how the Supreme Court corrected decades of judicial activism on the issue of abortion.
The Supremes are also correcting judicial activism when it comes to religious liberty.
A study in the Supreme Court Review shows that the Supreme Court with John Roberts as the chief justice sides with religious groups 81 percent of the time. That compares to only 46 percent of the time during Justice Earl Warren’s tenure (1953 to 1969), 51 percent of the time during the Warren Burger Court (1969–1986) and 58 percent when William H. Rehnquist was chief justice (1986–2005).
And most frustrating for the many anti-Trump Latter-day Saints, three of the six pro-religious liberty justices on the Roberts court were appointed by the much-pilloried former president. (Gorsuch, Kavanaugh and Barrett).
The Church of Jesus Christ of Latter-day Saints has a clear position on religious liberty: it is one of the few political issues in which the Church does not pull any punches. The Church newsroom pointed out a week ago that Church leaders have spoken out in favor of religious liberty 13 times in the last year.
President Oaks summed up the Church’s perspective: “Religious freedom is a fundamental feature of our religious doctrine. The restoration of the fullness of Christian doctrine teaches us that God created and put His children on earth to grow spiritually by making right choices between good and evil consistent with His commandments…Freedom of choice is, therefore, fundamental to God’s plan.”
Just in 2022, the Roberts court has released several important cases protecting religious liberty. In May, the Court, by a 9–0 vote, affirmed the right of a Christian group to fly a Christian flag in front of a municipal building – Boston’s city hall — while conducting a rally. In June the justices delivered two more victories for religious liberty, both by 6–3 tallies. In Carson v. Milik, the Court ruled if a state or local government pays tuition for certain students to attend private schools, it is discriminating against religion if it does not also allow families to use taxpayer funds to pay for religious schools. A few days later, also by a 6–3 vote, the Court ruled that a public-school football coach could pray, on the football field, after games in which he coached, and not violate the Constitution’s Establishment Clause.
The Establishment Clause refers to the beginning of the First Amendment, which says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
From the perspective of U.S. history, the purpose of this clause should appear clear to us. In the 18th century when the Constitution was written, the British had one established church, the Church of England, and other countries like Spain had other established churches, the Catholic church. The American colonists came from many different religions, so the Founding Fathers did not want the United States to favor one church or another but allow people to freely worship as they pleased.
What this did NOT mean was that the United States was supposed to be free of religion, which has been the affirmation of secularists over the last 80 years or so. The whole doctrine of “separation of church and state” is not in the Constitution and was instead taken from an 1802 letter by Thomas Jefferson as an excuse to bash any public expression of religion.
Latter-day Saints should be keenly aware of the long history of established religions attempting to ban other religions like ours. This has happened throughout the Church’s history and still happens today.
But this does not mean that we should not favor public expressions of religion from other faiths, and indeed prophets of the Church of Jesus Christ of Latter-day Saints have consistently spoken out in favor of all kinds of religious expression.
In one Supreme Court case, the government wanted to stop a football coach from privately praying by himself on a football field after a game. This obviously has nothing to do with trying to establish a specific religion over other religions, and the court rightly came down on the side of this coach’s religious liberty.
As Elder Cook said just a few weeks ago:
“My plea is that all religions work together to defend faith and religious freedom in a manner that protects people of diverse faith as well as those of no faith. Catholics, Evangelicals, Jews, Muslims, Latter-day Saints and other faiths must be part of a coalition of faiths that succor, act as a sanctuary and promulgate religious freedom across the world. We must not only protect our ability to profess our own religion, but also protect the right of each religion to administer its own doctrines and laws.”
The key, it seems to me, is real tolerance toward others’ viewpoints and religious expressions. This would resolve almost all of the issues related to the conflict between religious liberty and the establishment of a state religion.