Law & Religion on the Barrett Court | Crooked Media
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August 01, 2022
Strict Scrutiny
Law & Religion on the Barrett Court

In This Episode

It’s a deep dive into law and religion in this conservative supermajority iteration of the Supreme Court. Kate talks with Micah Schwartzman of UVA and Nelson Tebbe of Cornell about some of the major religious liberty cases that have come before the Court in recent years, and what the Court may be signaling for the future.




Kate Shaw: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court, the law and the legal culture that surrounds it. I’m one of your hosts, Kate Shaw, because it’s summer, we’ve got the luxury to go a bit deeper on subjects we have touched on over the course of the last term. And today, we’re going to do a deep dove on law and religion on this conservative super majority court. And for that conversation, I’m delighted to be joined by two fantastic scholars of law and religion, both of whom we have mentioned on the podcast previously, Micah Schwarzman and Nelson Tebbe. They both have very long and impressive titles and TVs, so I’m going to abbreviate both and I’ll just introduce them. Micah as the hearty Cross Dillard professor of law and the director of the Carter Center for Law and Democracy at UVA, and Nelson Tebbe, who is the Jane M.G. Foster professor of law at Cornell Law School. They’re both written extensively in law reviews, in the popular press and in amicus briefs on various aspects of law and religion, and on the relationship between principles of religious freedom and principles of equality. So, Micah and Nelson, welcome to the show.


Micah Schwarzman: Thanks, Kate. Thanks for having us.


Nelson Tebbe: Yeah, thanks very much. I’m a big fan of the podcast, so it’s great to be part of it.


Kate Shaw: Well, we are big fans of both of yours. So let me start by just asking you both to reflect broadly on how religion fared before the court this term. So we have just finished the first full term with the new six justice super majority, and you both obviously watch the court’s docket closely and the religion cases especially closely. So what are your big bottom line takeaways? Micah, you want to start.


Micah Schwarzman: Across the board? I think the answer is fairly straightforward, which is that the parties who are making religious claims and all of these cases win them. And that has been true for several years with really only, I think, one major exception. That was the travel ban case. But aside from that, in three main areas, the Supreme Court has, I think, inverted the doctrine as it stood in in decades prior. So those areas are about funding of religious organizations, especially schools, religious symbols. So the extent to which the state can support religious expression and religious exemptions from general laws in all of those areas, parties raising religious claims, especially free exercise claims, are finding a court that is welcoming them with open arms. I think that’s basically what has been happening. We’ll get into the specifics of particular cases. But the but the big picture is the court has a very expansive conception of what counts as free exercise of religion and a very narrow to the point of diminishing to nothing conception of what counts as state establishment of religion. So the balance between these two provisions of the First Amendment, the free exercise clause and the establishment clause has shifted radically over the last several years, and that continues through the most recent term.


Kate Shaw: Okay. So that’s a great high level overview and we’ll drill down on all of what you just said. Nelson, what about you? What do you want to add in terms of the kind of big high level takeaways?


Nelson Tebbe: No, I agree with Micah that the big picture story is that the free exercise clause of the First Amendment is being strengthened by this court in a very consistent way. And the establishment clause of the First Amendment, which, you know, we used to think of as protecting the separation of church and state, is being weakened. You know, if you zoom out historically, you might think that during the 1980s and nineties, during the the era of the Moral Majority religious conservatives, you had as an ambition to kind of weaken the establishment clause and make religion a bigger part of public life in a variety of domains. And, you know, these developments more recently are different, only slightly in that they seem to rely on the free exercise clause and the free speech clause to advance religious interests. And but there’s often an establishment clause kind of concern on the other side that gets short shrift in case after case. And so in a sense, it’s the fruition of a long program for religious conservatives with with a, you know, just a slight change of emphasis.


Kate Shaw: So it’s such an important point that none of this just kind of appeared, that this is a decades long project. But just as we saw, obviously, the dismantling of abortion rights under the Constitution, a process that, you know, as many decades in the making come to full fruition this term, I’m not sure there’s a single prize that could be pointed to in the kind of religion space, and the same way jobs, obviously, in the abortion space can be pointed to. But this was a term of very, very significant victories. You know, as you said, for a kind of a project that was a long time in the making. So maybe let’s drill down on specifics of some of the cases from the last term. But I really do want you to to feel free to pull in earlier developments, too, because, once again, this term did not just kind of spring fully formed. So let’s drill down on Kennedy versus Bremerton and Carson versus Macon, both what these decisions did and then what they did to precedent and how much they did change the law and built on previous changes in the law. So let’s start with Carson, which is a case in which the court struck down a program in the state of Maine. Maine is a big state, has. Small population. So lots of parts of the state have no public schools. So the state had a program under which it provided funds for parents with no local public schools to send their kids to private schools. But only secular private schools may and had created this program right in order precisely to avoid subsidizing religious schools concerned about, you know, maintaining the separation of church and state that Nelson you just referenced. But the court in Carson not only says the state could subsidize these schools, but had to subsidize these schools. So how much of a change in doctrine was Carson?


Nelson Tebbe: Well, it is, since, you know, Carson wasn’t surprising at all because it sits in a relatively long, although not old line of cases where the court has has made this shift from, as you said, from may to must. It used to be that we fought over whether the government was prohibited from funding religion in various kinds of contexts, including the school in context. But now the question is really under what circumstances must the government fund religious schools or other organizations when it funds secular schools or other organizations? And that shift from, you know, may to must and has been ongoing and in a in a few cases over the last few terms. But it did show itself in stark relief in the in the Carson against making decision from this term, as Justice Sotomayor puts it in her dissent today, the court leads us to a place where separation of church and state becomes a constitutional violation. She says, you know what a difference five years makes, which is the span of time in which this line of cases has been percolating. I mean, here she is. You know, she’s pointing, I think, implicitly not just to this the swiftness of the change, but also to it’s taking place over a time when the court’s personnel has shifted after Carson.


Kate Shaw: Our state’s completely disabled. Now we’re just you know, Micah, you mentioned, you know, a bunch of different kind of categories. So we’re talking just about kind of state funding of education. How much latitude do states have to control the kinds of funding that they’re going to provide to schools? Does Carson basically say if you’re going to make funds available at all beyond just public schools themselves, those have to flow to any religious educational institution that wishes to participate.


Micah Schwarzman: I think that’s the bottom line. Yes. I think there’s almost no latitude at this point. The next wave of fights about this are going to be in the context of charter schools. There will be a question about whether charter schools are public or private actors. And the argument from conservatives already is that charter schools are private actors who fall within this Carson framework. That is, the state must provide them with funding if it provides any private institutions with funding. That’s going to be the next wave of this litigation, and it will be an expansion to privatize education and to allow public funding of religious education to go forward. I just want to underscore what Nelson said, because I think this is sometimes missed, and it’s in part because, you know, we don’t have that much education about the doctrine in this area in a lot of places. It’s simply, I think, not not taught and I’ve said this occasionally on Twitter and other places. So I, I just think Nelson made an important point and I don’t want to skip over it. And that is that we’ve seen really three periods of change in the doctrine. In the beginning, post-World War two, the court prohibited direct funding of religious organizations and schools. And in the mid-to-late nineties and early 2000s, we saw a shift in the doctrine towards school vouchers, where the court said it’s now permissible to fund religious schools. States can do it if they want to. So that’s the kind of 90 degree turn. And now what we’re seeing is after this line from Trinity Lutheran Espinosa. Now to Carson, states are required to fund religious schools. That’s a total inversion of religion clause doctrine in the last 70 or 80 years. And I just think that periodization is important to keep in mind how much of a change we’ve seen in the doctrine. It really is a fundamental shift in how the court understands this establishment.


Kate Shaw: I’m glad that you underscored that, Micah. And it is right. It is not just that there is a change or expansion in the court’s conception of religious liberty or exercise. It is now saying what it previously held was constitutionally prohibited is exactly as you just said, not just constitutionally permitted, but constitutionally required. And that is quite radical, right, as a complete refashioning of the doctrine. So let’s shift to another case involving schools and religion. And we’ve talked about this a good amount on the podcast, Kennedy versus Bremerton. And that’s the case in which the court ruled in favor of a high school football coach who insisted on praying at midfield after football games. So the court found that both the free exercise and the free speech clause right protected the coach in this prayer where Carson, I think just. Clearly built on. I mean, the, you know, zooming out, it’s this is a radical change. But just in the last couple of years, right. ESPINOSA and Trinity Lutheran, which you mentioned, Micah, clearly paved the way for Carson. Was Kennedy a real change in the law of prayer in public schools? And sort of what did you make with the court? Maybe could one of you explain what the court did with the Lemann both case and test in the Kennedy case?


Nelson Tebbe: This was a decision that came out of a school district where Joseph Kennedy, coach of a public school football team, had engaged in a pattern and practice of prayer that happened in various places and at various times, including in the locker room and and then notably after football games. And students had been participating in this prayer. And the school district got wind of what was happening and was worried both about the potential legal. Trouble that it could be in because this seemed to violate the separation of church and state. But also, you know, aside from the law, I think the school is worried about the coercion of students in a practice like this and just about what kind of policy precedent it would be setting. The school kind of took action to encourage Kennedy not to pray in the locker room. Kennedy complied with that, but then also not to pray in such a outward manner after football games. And there the the conflicts kind of increased over time. You know, we’ll get into the details. But eventually Kennedy’s contract was was not renewed. And in this opinion, the court rules in favor of the Coach Kennedy on two grounds. First, that disallowing him from praying after football games is a violation of the free exercise clause. And secondly, that that action by the school district is a violation of the free speech clause. So you might wonder, you know, this is a free exercise in free speech case. So how does the establishment clause, you know, come into play? It’s not the basis of the decision. And that’s right. And nevertheless, the establishment clause does matter here, because one of the claims the school district made was that it was required by the establishment clause to discipline Kennedy in this way and to restrict his prayer practices. And then, you know, at one step remove, even if it wasn’t required by the establishment clause to take those actions, the school district was pursuing the establishment clause values when it required the coach to kind of contain and limit his prayer practice to times when, you know, he really wasn’t on duty and the prayer wasn’t exerting any kind of conceivable pressure on students. So the most obvious way in which Justice Gorsuch’s opinion for the court changed the law is that he kind of confusingly acknowledges the the death of the lemon test. Lemon against Curse Moon was an opinion from the early 1970s that sometimes thought of as the kind of high watermark of the separation of church and state or the separation test approach to religion and government. And it said simply that there are three kinds of requirements imposed by the establishment clause. One is that government actions have a secular purpose. The second is that they have a secular effect. You know, predominantly there are some qualifying words, but they should have a secular effect. And third, that the government should not become entangled with religion in a way that would be problematic for the independence of of churches and, you know, their houses of worship. And this test was applied initially in the school in a school funding context, actually, but then increasingly outside that context. And it became a kind of all encompassing kind of test for the establishment clause over time. It also it came to include a requirement that the government not act in ways that conveyed a message of endorsement to religion generally or to any particular religion, such that insiders were conveyed to be favored members of the body politic and outsiders were thought to be sort of second class citizens who didn’t belong to the to the public body in the same way that insiders did. The Lemon test had been under attack in many opinions from many different justices over the years, not just this current majority. And in the Kennedy versus Bremerton opinion, Justice Gorsuch sort of purports to recognize that it had already been he doesn’t use the word overruled, but discarded or something like that.


Kate Shaw: Abandoned, I think he says.


Nelson Tebbe: Abandoned. Right. Justice Sotomayor and dissent says, you know, that Justice Gorsuch and the majority are overruling. Lemman So she uses the word, but the majority doesn’t. So that’s one way in which you could point to Kennedy against Bremerton as kind of really changing the doctrine. But I’d like to point to another way in which the decision changes the doctrine, one in which I think is actually much more fundamental, which is that Justice Gorsuch is opinion for the majority in this case undermines the school prayer cases from the early 1960s. You know, there’s a way in which there’s a very colorable narrative under which this it’s the school prayer cases that did the most to kind of establish modern doctrine of the establishment clause of the First Amendment. And these cases, and Glenn Schempp basically prohibited schools from engaging in prayer practices, even with opt outs for for students. This has been bedrock constitutional law ever since the. Early 1960s. But the Kennedy decision envisions a world where prayer could be welcomed, subject only to requirements that it be offered neutrally and without explicit coercion. Meaning, you know, as long as students can opt out, it would be constitutional. So why does it envision that? You know, in what way? Well, one you know, one way in which the Gorsuch majority opinion undermines the school prayer cases is by putting in place a historical practices and understandings approach to the salvation clause that quite conceivably could allow official school prayer. So that’s the first way. And the second way is by sort of ignoring the fact that the school prayer cases implicitly but unmistakably rested on a concern about coercion of students in the form of coercion. The understanding of coercion that the Kennedy majority opinion uses is is quite formalistic, meaning, you know, if there isn’t record evidence that some student or their parents complained about coercion, then there wasn’t any. And that’s just not the way that the school prayer cases kind of fundamentally thought about student coercion. So I think there’s a real concern that the school prayer cases have been undermined here. And, you know, Professors Lupu and Tuttle say as much in a really nice piece in the ACS blog on Kennedy. That’s Bremerton.


Kate Shaw: Wow. So it’s not just because they’re their most recent cases, right? Lee versus Wiseman and Santa Fe about prayer or graduation and broadcasting prayer via a loudspeaker that the court does go out of its way to say, well, that was that was different. And so this is fine. But without explicitly revisiting those, let me know if you disagree with that description. But the foundational prayer cases are, you think, not just the kind of more recent extensions of those the logic of those cases might actually be vulnerable after this opinion.


Micah Schwarzman: I’ll just say I think Nelson’s summary is really excellent, so I’ll just add a couple of points. In response to your most immediate question, the court doesn’t cite Angle and Shepp, right?


Kate Shaw: Sotomayor doesn’t dissent, but the majority does not. It’s really striking.


Micah Schwarzman: That’s right. So I think that will be noticed. Lower court judges who are eager to extend the implications of Bremerton will have seen that the court is not reinforcing Angle and Schempp, the foundational school prayer cases and in fact I think has gone a long way to gut the reasoning of those decisions, which was not based on coercion. The court, in both angle and sharp, goes out of its way to make very clear that coercion is not required in order to show an establishment clause violation. This court’s decision in Bremerton, I think, undermines the reasoning, and it was invited to do so not only by the parties but by numerous amicus briefs to reject the clear reasoning of those school prayer cases, which I think the court has basically done. So I agree with Nelson and with Chip Lupu and Bob Tuttle about that. So I think that’s the first point, which is that they invite challenges, more immediate challenges to the school prayer cases. The second is you asked earlier about what the big takeaway is. There’s nothing maybe as big a prize as overturning Roe v Wade but overturning. LEMON You know, if we’re going to get anything close to a big prize, Justices Thomas Gorsuch, Alito before them, Scalia, Rehnquist, they’ve been after this move for a long time. They’ve been calling for the overruling of Lemann for many, many years in many opinions. They can come back over and over to complain about. LEMON And it’s a little odd that finally when they get there, they don’t own it overtly or explicitly, like you might have thought they would be proud to do this. And here they just say a lemon is abandoned in a kind of ambiguous and weak way. Leading lots of experts to ask questions. Was Lemon really overruled? And, you know, what exactly are the implications of all of this? And as if there’s any doubt that Lemon was overruled, I mean, Sotomayor is saying what is so unbelievably obvious, given the other opinions that Thomas Gorsuch and others have written criticizing Lemon. Lemon is done in this opinion. And it will be clear to everyone who has been following conservative jurisprudence in this area. I think for them, that’s a kind of prize here that they are now going to put religion clause jurisprudence on, on the basis of some amorphous historical originalist task, which which provides us with very little, I think, in terms of guidance about how to resolve future disputes. But they’re okay with that. There is a long game here to evaluate practices and to open it up to lower courts to make innovations in terms of allowing more religion into public schools.




Kate Shaw: I’m so glad that you emphasize that the overruling of Lemman, despite the sort of idiosyncratic way Gorsuch does it, is actually really, really a significant take away. And I wonder whether, you know, we puzzled through on our last couple of episodes of the term, like what exactly it was the court did with Lemman and why the court did it the way it did. Leah, I think, made just an incredibly smart and important point, which is that the court by doing this kind of recognizing as abandoned as opposed to kind of forthrightly overruling move evades the responsibility for having to say this is why story decisis does not compel our continued adherence to the limits. This is why we are discarding it. And the Court’s not taking responsibility for it. It’s not explaining why it’s abandoning limit, and maybe it takes the temperature down in terms of public commentary around this very radical move. And I think maybe, you know, it was a busy end of term. Who knows if that’s why. But I’m not sure the public fully appreciated that this is this was an incredibly significant development in this case. And so I’m really glad that you emphasized that, that this, you know, sort of was a long standing target. You both mentioned this kind of amorphous historical analysis that the court seems to now say it’s going to use to evaluate any potential establishment clause violation. What are lower courts supposed to take methodologically from and I think this appears in Carson as well as Kennedy. I think that, you know, we kind of have talked a lot about how front and center the historical analysis was in different ways in the Dobbs case and then the Brewin Gun case, but less so, I think in the religion cases. What is the method and what are lower courts supposed to do with history in resolving these cases in the future?


Nelson Tebbe: I think it’s really hard to tell. I mean, as you say, Kate, and I think that it’s totally right to say this and the court gets very little guidance about how to use this kind of test. It’s not even clear that it’s sort of pure originalism. You know, historical practices, understandings can mean a lot of things. And in previous cases, which are really pretty obviously the inspiration for this approach in the religion context and the court has not limited itself to original meanings, but instead has looked at, you know, whether, for example, legislative prayer has been a longstanding practice kind of in the United States, and you could imagine a looser kind of approach to history being used by lower court judges as well. I mean, you know, if we’re going to think about what the practical implications of this decision are, you know, I think some of the immediate applications are very apparent and also quite troubling. For example, imagine a public school teacher decides before the bell rings in a classroom to offer a prayer. It’s out loud. Maybe it’s quiet, but out loud it’s visible to students public. In that sense, students can join if they want, but there’s no obligation for them to join. I mean, I would think that that kind of thing would be, you know, completely acceptable under this opinion because it’s, you know, culpably private, the employee is offering this just for their own purposes. And the fact that students are there and can see it is incidental to those purposes and there’s no explicit coercion. And you can imagine an application like that that’s like really quite easy. And then, you know, you can imagine a line of cases that extends a holding like that further.


Kate Shaw: Anything to add, Micah, on why it might be especially problematic to do whatever the court is suggesting should be done in these cases going forward, this original originalist or originalists turn to history, which is not historically been the way the court has approached religion cases.


Micah Schwarzman: It let me make two points. The first is that for a court, the purports to be originalist. We don’t get much historical argument or understanding from these opinions. I mean, there there are some brief mentions on a kind of laundry list about the hallmarks of establishment at the time of the founding. But of course, many of the problems that we’re talking about here don’t have historical antecedents. We’re talking about public schools, which for the most part didn’t exist during the founding. And we also just have vastly more religious pluralism and wide acceptance and toleration, I would hope, much more than toleration, equal citizenship for nonbelievers. These developments in our understanding of inclusiveness and religious freedom have changed dramatically over the course of our history. And turning the clock back to original applications at the time of the founding is is going to ignore much of that. But the second point I would add here is in some ways, all of these historical arguments for someone like Justice Gorsuch are argue ENDA. I mean, he signed on to an opinion and Espinosa with Justice Thomas, in which they argue that the establishment clause is a federalism provision. It simply doesn’t apply, in their view, to state actors. Now, there are only two votes for this kind of view, but I think it does. Aim the outer boundaries of their historical argument, which is just to say they would dis incorporate the establishment clause and not apply it to the states at all. And I think that if that’s the anchoring view for them on their historical analysis, all the rest of this in-between is just details. And lower courts will have to work out those details. But some of the justices, I think it’s fairly clear, don’t think that the Constitution has anything to say about church state separation when it comes to state and local governments. And that’s just quite a shocking view that this incorporation is the is the kind of broader frame for Gorsuch and Thomas. And we haven’t really heard from a couple of the justices on that claim. Exactly. I don’t think there’s a majority among among the conservatives for that view. Their fallback position is a coercion test, which conservatives have been have been looking for for more than a generation now. And the question will be what what counts for that that test in their historical analysis? And I don’t think we know the answer to that question. Gorsuch says some things in Bremerton following Levi Weissman middle school graduation prayer case, where his former boss, Justice Kennedy, writes the majority and says, look, there’s psychological coercion in this context, and Justice Gorsuch in the Bremerton majority cites Lee. But it’s not obvious that the conservative majority of this court would apply that coercion test to the facts of Lee itself. And the court doesn’t say that it would do that. I think some of these more recent precedents, Lee and Santa Fe, are open to challenge at this point. And we we just don’t have guidance, as Nelson said, about how to view its historical methods. All of that is for the future. But I’m deeply skeptical that the court will put any teeth into its establishment clause jurisprudence, because I think at the end of the day, what they really think is that it just doesn’t have any role to play at the state and local level.


Kate Shaw: So I do want to underscore what Micah just said. Right. So Thomas, I think, has long taken the position that the establishment clause just does not apply to state or local governments at all. It does is prevent Congress essentially from establishing some national church. Right, more or less. And until Gorsuch joined the court, he was a lone traveler on that score. But I wonder whether what you’re suggesting, Micah, that’s clearly a quite radical theory. It’s not clear there’s any more than two votes for it, but that there are another three or four votes that would essentially read the establishment clause just out of the Constitution. Kind of generally. I guess I guess I wonder whether in terms of what we know about this court as currently constituted, does a majority of them think the establishment clause does any work at all in the Constitution?


Micah Schwarzman: We haven’t seen any evidence of that. There are no we haven’t seen a limit case. Right. This court has no cases in which it applies the establishment clause except in the ministerial exception, where the establishment clause does work to reinforce the right of churches to be immune from employment discrimination and other anti-discrimination laws. Those that’s the only context in which the the conservative majority seems willing to apply the establishment clause. I mean, it had an opportunity in the travel ban case, which I mentioned earlier, and it rejected that opportunity. So if there is an outer limit, we don’t know where it is. I think is the you know, is the short answer.


Nelson Tebbe: You know, Michael McConnell wrote an article that’s been influential in this court, engaging in an historical, you know, slash originalist interpretation of the establishment clause where he identified some, quote, hallmarks, unquote, of an official establishment. And in those are things like you can’t have, you know, an official church. You can’t coerce people to pray in a way that offends their conscience. The government shouldn’t be composing prayers. Right. And these kinds of obvious violations of religious liberty and the justices seem, you know, quite drawn to that kind of approach. And what it portends, though, is really very unclear. I mean, if coercion is limited to actually, you know, sort of forcing people to engage in prayer in different kinds of ways as occurred under, you know, the Anglican establishments in some of their varieties, then that’s a pretty crabbed, you know, understanding of what coercion means.


Kate Shaw: Okay. So I want to actually step back a couple of terms. So the two of you have written together about a phenomenon that I think was more present in an earlier iteration of this conservative court. I mean, the phenomenon is something you have termed establishment clause appeasement. Could one of you walk through what you have meant when you’ve written about establishment clause appeasement? And then maybe we could talk a little bit about another case from this term short left versus Boston, which we haven’t mentioned yet.


Micah Schwarzman: Let me start with how we got into this idea, and then I’ll let Nelson talk about the concept of appeasement. But the basic the basic observation was born of launching a pattern of decisions develop at the court. So, you know, we’re we teach the law of religion and government. And we’re reading these cases over the last, I don’t know, half decade or so, little more than that maybe. And there was a strange seven two pattern. And developing across the various categories of case I mentioned earlier funding, symbols, exemptions. So you get a case like Masterpiece Cakeshop, which involved weddings under huge challenges in anti-discrimination law on free exercise grounds. And then the case comes down 7 to 2, right, with Justices Sotomayor and Justice Ginsburg dissenting, but with Justice Breyer and Justice Kagan joining the conservative majority. And we saw something similar in American Legion involving the Bladensburg Cross, a large cross outside the D.C. area in Maryland. And in some of the funding cases, Trinity Lutheran, for example, was a72 decision. What’s going on here? Like why? Why are Justice Breyer and Kagan joining on to conservative majorities for outcomes that we think they probably don’t agree with, especially Masterpiece Cakeshop? You have to think if it’s Justice Garland as opposed to Justice Gorsuch and there’s a54 Liberal majority on the court, it seems implausible to think that Kagan would have joined conservative position in that decision. And so we’re wondering, like, what is the logic of these decisions? And one answer is, look, the liberal or progressive justices are trying to forge some kind of compromise and argue that compromise was always a kind of illusion. And in attempting to ameliorate the conflict on the court, we think the liberal justices invited the conservative wing of the court to press even further. And when we looked around for ways of describing that phenomenon, I mean, one way to do it is to describe it as appeasement. Now, appeasement is a term that comes with lots of obvious historical baggage. And, you know, we we wanted to put some distance between our understanding of that concept and some of the historical metaphors. But we do think that concept does some work here. The idea of trying to forge compromises with others in order to prevent further conflicts in ways that ultimately end up being self-defeating, that don’t fully anticipate that the other side is going to take even more and more ground. That, for us did a lot of descriptive work. It helped us, I think, understand the phenomenon that seemed to be happening on the progressive or liberal side of the court across these religion clause cases. We wrote up that understanding of what we thought might be the strategy. It’s difficult to prove this, but we amassed the evidence that we thought pointed in the direction of this. And Nelson continued, But I think though the last term sort of bears out some of that argument.


Nelson Tebbe: Right? So we redefined appeasement as a sustained strategy over time of offering unilateral concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening the other party to take more assertive actions. And as Micah said, we disclaimed the historical connotations of this term. But the problem is there isn’t really another term that captures, you know, this particular dynamic. And we thought that, you know, at least there is some evidence that that dynamic was afoot. And we tried to distinguish appeasement from other close cousins like compromise or co-optation. And we also you know, we also said clearly that if these justices were making decisions based on principle, that is, they really believed in what they were doing. That doesn’t count us as appeasement. Appeasement is a strategic maneuver. Right. And it’s a particular kind of strategy. So we wanted to look for evidence of whether they were behaving strategically and whether if they were, this was the kind of strategy they were adopting. But appeasement also has a critical edge, right? It is a normative edge. And our worry was that the liberal justices strategy might have been serving to embolden, rather than temper the majorities assertive campaign of strengthening religious interests in case after case. Why is that a concern? Well, it can affect outcomes, but even apart from outcomes, appeasement can influence the distribution of legitimacy among the majority and dissenting opinions. So it can help shift the Overton window of thinkable positions in a conservative direction. And we’re seeing, you know, this term how the previously unthinkable has suddenly materialized. By contrast, though, like refusing to concur, dissenting in case after case can provide a powerful counterweight to efforts by the majority to shift constitutional meanings in a revolutionary or reactionary manner. So what? What? Even though the liberal justices now do seem to be dissenting together in case after case. So in some sense, the concept of appeasement has less application today, at least on the Supreme Court, although it may have applications elsewhere, is we now learn something recently about what the substantive positions of these justices really are. Right. And so we learned in Carson and also in Kennedy that, you know, Justices Breyer and Kagan really do seem to be opposed to what the majority is doing here. And that strengthens our hypothesis. It doesn’t prove it. Like we still can’t really be sure, but it strengthens our hypothesis that what they were doing earlier was strategic in manner, and that that strategy might have had some real costs.


Kate Shaw: So even though for the most part it does seem as though, if you correctly diagnose what was happening, I think it’s a very powerful case you make. They seem to have changed the strategy this term for the most part. But of course, short left versus Boston is a different example. What if you want to talk about what that case was about? And, you know, I think you’re right, the opinion and there are several concurrences, but is that another example of the phenomenon that you identify so that they’re still utilizing it to a degree? Or do you think the case is something different?


Micah Schwarzman: So this is the the Boston flag case. So Boston has some flagpoles at the city center, and one of them allows various kinds of civic groups or other private organizations to run up their flags. It’s a case about whether Boston has created a public forum in which it can engage in viewpoint discrimination, which would be prohibited under the free speech clause. And the court says it has, in fact, created such a forum and it can’t discriminate against groups that want to fly flags that have religious content. So here there was a group that wanted to raise a Christian flag in Boston, say, well, we have a establishment clause or just establishment interests not to allow this kind of message to go up on government property. And the court says, no, you can’t discriminate against religious messages when you’ve created a public forum. And the establishment clause doesn’t provide the state with any kind of compelling interest or a counterweight to justify that kind of discrimination. And here, the court relies on longstanding precedent of new Rosenberger and some other public forum cases which have had a similar kind of pattern. And the decision is unanimous. I think the liberals here don’t have that much difficulty because of the particular facts of this case. And so they they think the city really hasn’t articulated limits on the forum up until this decision. And so I think this is not really an example of an appeasement case. In a way, the decision is more notable for the concurring opinions from Justices Alito and from Justice Gorsuch, which again take more aggressive postures which chastised the court for the tests that it adopts, and especially Justice Gorsuch, who just writes another opinion criticizing Lemon and the implications of Lemon and arguing that Boston had relied, I think with the implication that Boston was acting in bad faith, there seems to be that suggestion that there was hostility toward religion and animus on Gorsuch’s behalf and in his opinion. And. Shurtleff I don’t think there’s evidence of that. But again, this is a constant theme in these types of cases, the theme being that conservative justices are staking out ever more aggressive positions, even when they’ve got unanimous opinions. And for the most part, the liberal justices are trying to defend existing precedents and sometimes with kind of meek or moderate concurrences, as we saw in these seven two decisions leading up to this term. But what they haven’t done, I think Sotomayor is exceptional here, is stake out the core principles and defend them. It’s really stunning. I think that we hadn’t seen a full defense of the Lennon framework until the court overruled that decision. There were occasions in which there were opportunities for the progressive liberal side of the court to defend that approach or parts of it. And it just comes late. Too late. I think.


Kate Shaw: Yeah. I think you both just make such powerful cases for the costs of that strategy. And it makes me I wonder whether either of you has thought about, you know, whether it has application outside of the law and religion context. I mean, I wonder whether, as you know, a number of justices are gunning for overturning Chevron, say, like and you know, will we see a similar strategy of trying to kind of avoid the ultimate question of Chevron’s fate? And, you know, see cases in which a broad majority or unanimous court, you know, rules against an agency, but without even mentioning Chevron or, you know, upholds what an agency has done, but also without mentioning Chevron, because we did see a little bit of that this term and nobody actually mounts the full throated defense of Chevron until it actually is being overruled. And I don’t know if Chevron is the best example, but are there broader lessons about the pitfalls of this strategy that you think apply beyond the religion context?


Nelson Tebbe: You know, there are lessons not only about the costs of strategies that don’t work, but also about the virtues of dissent. I mean, the liberals are going to be in a dissenting posture in this court for years. Yeah. And so it’s worth taking a moment to think about, you know, what are the functions of dissent. It can seem futile at times, really, to keep kind of I forget what the metaphor is blowing against those spitting into the wind. And but it’s not futile, right? I mean, there are reasons of. Public education. And there are reasons of student education, right? Of like intergenerational transfer, of ideas that are really important. There are reasons to make it difficult for the majority to shift the Overton Window so dramatically so that unthinkable positions like the overruling of Roe v Wade become become thinkable. I think the liberals on the court, you know, should take a moment. And I’m sure they’re doing this to really reflect on what are we doing in these dissents? You know, why why are they virtuous? What what what values do they serve? And and how should we handle a situation where we’re going to be sort of perpetually dissenting?


Kate Shaw: Yeah, I think that’s such an important point.




Kate Shaw: I want to spend just a few minutes talking about Dobbs. And I want to get to that third category that you mentioned at the outset, Micah, religious exemptions. But actually, before we get there, the Dobbs majority opinion itself, I wonder how, if at all kind of religiously inflected you think the Alito majority opinion is? I think there have been some commentators who have thought, in particular in a couple of places where the opinion is talking about the distinctions between its overruling of Roe and some of the other cases that it purports not to be touching or, you know, throwing into any kind of doubt, like Griswold or Eisenstadt or Lawrence or Obergefell and the court a couple of times, it basically says none of those cases are about the destruction of potential life. And that is a claim that for many people reads as a religiously inflected claim, even if not explicitly presented as such. So I just wonder if you had any of those reactions to Dobbs itself. And then I want to talk about religious exemptions and Dobbs.


Nelson Tebbe: You know, I’m not ready to sort of commit to a you on this because I do think it’s complicated. But let me just try out an idea that maybe captures some of your question. You know, when Obergefell came down in 2015, Micah and I, together with Richard Schrager, I wrote a piece arguing that the most significant and new aspect of the opinion was that it put an end to the practice of governments using exclusively religious reasons for lawmaking. You know, bans on marriage equality or restrictions on marriage equality were kind of very plausibly only motivated by religious reasons. And one thing that was significant, but I think largely overlooked about Obergefell, was that it put real limits on the ability of governments to legislate on the basis of exclusively religious reasons. Now, bans on reproductive freedom are not always necessarily based on religious reasons, in the same way that bans on marriage equality were. But they’re still based on contested conceptions of conscience. Right. So Dobbs allows governments to regulate citizens based on very controversial ideas about life and death. And you could view that as an important step backward. Other laws, of course, also regulate questions of life and death based on religious reasons, in part like murder laws, for instance, have both secular and religious rationales. But those rationales all kind of point in the same direction, with very few exceptions. So there’s a kind of overlapping consensus supporting them. But bans on reproductive freedom are highly controversial at the deepest levels, and protecting reproductive freedom allows religious citizens to follow their own consciences on fundamental questions. But bans on reproductive freedom do not allow citizens that have, you know, deeply rooted convictions of conscience about the control over their own bodies to to exercise those. And they could rightly complain that they’re being regulated, coerced by the government based on views about, you know, the deepest and most meaningful questions of conscience that they disagree with.


Micah Schwarzman: Can I add one more point, which is to link Bremerton and the rejection of Lemon to this discussion about Dobbs, because if you recall, the first part of the Lemon test was a requirement that laws have a secular purpose. And Gorsuch ridicules this idea in in the Bremerton opinion and in an earlier opinions criticizing Lemon for example the opinion in sure love. It’s not at all obvious that the conservative justices on the court think that the law has to have a secular purpose behind it and that they might well invite religious justifications for law. I think one implication of overruling Lemon is that there’s no establishment clause bar, at least as a matter of formal doctrine to legislating on religious grounds. That’s an implication that people are really talking about. But among the hallmarks of establishment that the just conservative justices refer to, that’s not one of them religious justifications for legislation. It’s not discussed or mentioned as a feature of our religious establishment, the imposition of religious reasons by law. You might have thought was a core feature of our understanding of what an established church is. And so I think that the foundations of these kinds of regulations could be radically different under the court’s current understanding of establishment clause doctrine. And I think it will have repercussions in areas like reproductive rights, abortion restrictions. But I also think there’s a future in which we’re going to see different types of arguments and votes for gay marriage, for other kinds of privacy interests. I’m concerned, deeply concerned about the relationship between the court’s understanding of the foundations of law after Bremerton and its implications for jobs and for future challenges to other substantive due process rights.


Nelson Tebbe: So just to be clear, the point we’re making here about the reasons for legislation is it just doesn’t have anything to say about whether Justice Alito’s opinion in jobs is religiously motivated. And this is a point about what the Dobbs opinion and these other opinions that we’ve been discussing today allow legislators to do. They now have leeway to regulate citizens on the basis of religious reasons that they might not have had earlier.


Kate Shaw: Right. No. And that’s what I think. Those are all really, really important points linking these cases together. One of the questions that has arisen Post Dobbs is something that Micah, you and Dahlia Lithwick wrote about in Slate. And so I want to take a couple of minutes to talk about whether there may be a way for those who argue that state prohibitions on or state restrictions on abortion, which may now permissible, potentially be grounded in religious justifications for the discussion that we just had, may be challenged on the basis that those prohibitions violate some other individuals, religious liberty, potentially under state constitutions, as we just saw in the case filed recently in Florida, where a synagogue has brought a claim that the state’s new abortion law violates their religious liberty again under the Florida State Constitutions religious liberty provisions. Micah, do you want to talk about that case and I guess how on the court’s existing kind of religious liberty exemption jurisprudence, a claim like this you would expect to fare.


Micah Schwarzman: And so we have we have a case out of Florida which says basically, under Jewish law, the fetus is not considered a person at conception. This is a Christian or certain kind of Christian understanding that has basically been incorporated into state law and that the synagogue there is basically claiming an exemption. It says we have religious opposition to following this law in some circumstances according to their understanding of Jewish law. An abortion might even be required to protect the health and life of the mother. And that under Florida state law, there’s a Religious Freedom Restoration Act or a version of it in Florida law that an exemption and a religious exemption ought to be required. And you can imagine arguments like this being replicated in other states or even at the federal level under their First Amendment right, someone someone is required to follow an abortion restriction or to comply with it. Imagine a Jewish woman seeking an abortion and is prohibited under state law from doing that. And she would say, look, under my understanding of my religious values, this is an important thing for me to do. And acting according to my religious conscience, I ought to terminate my pregnancy. A woman could say that and claim a religious exemption under a state and federal law. Now, the question is, is that a plausible claim under the First Amendment or under a state constitutional provision or a Religious Freedom Restoration Act or something along those lines? And I think the argument can run in a couple of directions under the Court’s current free exercise jurisprudence. What the court, in a couple of important cases during the pandemic said was that if a state allows any secular exceptions to a law that burdens a religious practice and it also has to allow a religious exemption unless it can satisfy the demands of a compelling interest test, that is, unless the state can show that it has a compelling interest to reject the exception that its law is justified by some powerful governmental interest, and that that law was narrowly tailored, which the court has basically found impossible in cases where there are secular exceptions being granted. Now, on the abortion context, the arguments going to go something like this. Some states are going to have exceptions to their abortion restrictions in cases of rape and incest, for example, or to protect the life of the mother and the. Argument will be, well, if you have those secular exceptions, well, then there must also be a comparable religious exception. Those exceptions, secular exceptions undermine whatever interest the state is claiming in protecting fetal life, and the religious exemption would function in the same way. You can’t, according to the court’s doctrine, privilege secular interests over religious interests. Some people describe this doctrine as providing a most favored nation status for religion. The idea would be that religious claims in this context ought to get equal treatment to secular interests. That’s the way that the argument would be framed. And I think it really puts some of the conservative justices who’ve accepted this doctrine in a bind. They’ve got to distinguish the abortion context somehow from others, and it’s not at all obvious how they can do that. Now, some of the justices are going on the conservative side have gone even further. They reject a case called Employment Division versus Smith, which said that if you’ve got neutral and generally applicable laws, then the state only has to show that it has a rational basis, not doesn’t apply the court doesn’t apply strict scrutiny in those contexts. These justices said if there’s any substantial burden on a religious practice, then the court will apply. A compelling interest test, will apply strict scrutiny. And those justices, again, are going to have to give an account of why strict scrutiny is satisfied when some secular exceptions have been granted. One last thought on this is there might be some states that don’t have exceptions or that purport not to have exceptions, that don’t have exceptions for rape and incest and their abortion restrictions. And they have total bans. In other words, they’ll all have exceptions for the life of the mother. And the argument might be, well, that is not an exception that would provide a hook for a religious exemption. And here the problem is, the justices who are most inclined, I think, to take a view of this kind have said in the vaccine context that providing exceptions for medical purposes to protect people’s lives is a kind of secular exception that would generate a ground for a comparable religious exception. And so, again, it’s really hard to see how they get away from their own analysis. In other contexts, in the abortion context. So I think it turns out, given the way the doctrine looks, there’s a really powerful argument here for a religious exception. And that has driven, I think, some conservatives to look for other ways of blocking these types of claims. And so the piece I wrote with Dahlia Lithwick that you mentioned was a response to an argument by a conservative legal commentator saying that Jewish women of reform and conservative Jewish women and sure, I mean conservatives in the sense of conservative the conservative Jewish movement, but that is liberal and progressive religious believers. But here especially, again, reform Jews that they’re not obligated by their religious beliefs to terminate pregnancies. Now, in some cases, I think that’s just factually mistaken. But even if that were true, the argument here is going to be that the law requires you to show that you have a substantial burden and you only have a substantial burden according to this conservative argument, if you can show that you’re religiously obligated. And on that view, these abortion exemption claims would be rejected at the front end of the legal argument. That is, the court would say these people simply aren’t substantially burdened because they don’t they can’t show that they’re required by their religion to do something. The reason why I think we’re seeing this kind of argument is because the courts, the free exercise doctrine, has put the justices in such a bind on the back end of the analysis that they’ve we’ve now shifted arguments to the front end, trying to knock out these claims on the grounds that they’re either insincere, though, that they that these restrictions don’t substantially burden liberal and progressive religious believers religious commitments. And I think that’s just a stunning argument. It’s both wrong as a matter of legal doctrine. And that was the point that Dahlia and I were making most, most centrally, that, in fact, free exercise doctrine doesn’t require you to show that you’re religiously obligated. It only requires you to show that you’ve acted in accordance with the religious motivation or as guided by values in your religious way of life. And here, Jewish women and other liberal and progressive believers are clearly going to have sincere religious objections. As Nelson put it, these are matters of conscience. Everyone or everyone, I think, ought to recognize them as such. And to the extent that we see some conservative commentators pushing back on that, I think it’s because they’ve boxed themselves in when it comes to the back end of the free exercise analysis.


Kate Shaw: You have both incredibly effectively and, you know, sort of chillingly depicted this Braddock’s transformation in the role of religion in the Constitution and in our collective public lives, either with respect to a case or a particular issue. You know, sort of pick your poison. But in terms of what is coming down the pike, either next term or in the next couple of terms, what are you most concerned about the court continuing to refashion in this area?


Micah Schwarzman: I think we’re going to see more litigation in the aftermath of Bremerton testing the boundaries of religion in the public sphere especially. Religion in schools, the courts, jurisprudence has more direction. In some ways, we know that some of the precedents that the previously constrained government actors no longer apply, but the guidance has been so minimal and there will be real incentive, I think, on the right to pursue the outer boundaries of the court’s jurisprudence here. And no one really knows where the outer boundaries are. And so we’re going to see tests for that, about prayer in school, about prayer in other public settings, in courtrooms. For example, we saw a recent case in which a Florida judge was deciding a case about abortion restrictions, where she opens the court session with a prayer which brought back to mind a case involving municipal prayer is called Town of Greece, in which Justice Kagan, at oral argument almost immediately after the municipalities lawyer began the argument, said, let me stop you imagine that this court opened with a sectarian prayer. Would that be acceptable? I think all of those questions are right back in the lower courts to figure out what the boundaries of the court’s jurisprudence are when it comes to government religious expression. On the funding side, we’re going to see continuous fights about charter schools, as I mentioned earlier, with another wave of litigation coming, trying to expand the scope of public funding for private religious organizations. And in the exemption context of the Florida case is just going to be the first of many tests involving abortion restrictions and perhaps other forms of regulation of privacy. And then who knows what will happen with gay marriage, where I think again, I think the right is emboldened. And I think I think there will be some attempts to regulate and all of that with with a religious dimension to it. So I think across the categories we’ve been talking about this court for many terms now has had a blockbuster religion case every single term, in some terms more than one. And I think that will continue for the for the next several terms. At the very least.


Kate Shaw: You guys are going to stay very busy. And what about you, Nelson?


Nelson Tebbe: Yeah. I mean, look, as Micah said, the only thing that is certain is that this, you know, six vote conservative supermajority is not finished in this area. Right. Their work is ongoing. We’re in the middle of this revolution, not at the end. So if you think about the three categories of cases that Micah has set out at the top, you know, there’s cases about government funding of religion. There are cases about government expression that’s religious and content, and there are cases about religious exemptions from government regulations. And in all three of those areas, we’re going to see movement on government funding. One one question that we didn’t talk about that’s coming after Carson against making is to what degree can governments condition that funding on nondiscrimination of various types. You know, most most valiantly for the issues that we’ve been discussing, you know, can a government say, okay, we’ll allow religious religious schools to receive government funding, as the Supreme Court has directed us to? But we’re going to require those schools not to discriminate in various ways on the basis of especially LGBTQ plus identity, you know, is that okay? And when it comes to the government expression, you know, the prayer in public schools, cases are are going to see serious pressure, as we’ve been discussing. And that pressure will extend beyond schools as well. And then when it comes to religious exemptions from general law, as you know, the Supreme Court already has a case on its docket for next term. It’s granted cert in 303 Creative, which is about a website designer who is religious and doesn’t want to serve same sex weddings or ceremonies. And that case is being litigated as a free speech case. But nevertheless, you know, it is in a sense about an exemption for religious activity. And the court’s going to continue to to widen the availability of religious exemptions from from general laws, including civil rights laws. And it’ll do that in a variety of ways, sometimes using the free speech cause, sometimes using, you know, the most favored nation or equal value approach to free exercise, and sometimes in other ways, maybe even by overruling employment division against Smith. But regardless, I think, you know, the trend is obvious and it’s going to it’s going to continue.


Kate Shaw: We will stay in touch with you, too, about all these issues. Nelson Tebbe and Micah Schwartzman, thank you so much for taking the time. That was illuminating and frankly terrifying. And I really, really appreciate you breaking it all down so clearly. So thank you both.


Nelson Tebbe: Thanks so much for having us.


Micah Schwarzman: Thanks, Kate.


Kate Shaw: Before we go, I wanted to let you all know about the latest episode of Heartache. Mary and Amy talk with Ilene Brown, a New York based reporter focused on environmental justice issues, to discuss the unique intersection of climate change and the prison industrial system. It’s a fascinating conversation. You don’t want to miss it. You can listen to new episodes of Hot Take every Friday wherever you get your podcasts. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth with Summer Intern support from Anoushka Chander.