Nov. 10, 2022 — A panel of national experts reflected on the evolving intersection of law and religion in the United States during a recent continuing legal education Supreme Court Update hosted by the University of Houston Law Center.
The conversation centered around the First Amendment, which provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise.
The political nature of the justices and the religious landscape of the country is impacting the Supreme Court’s interpretation of the First Amendment, explained Professor Samuel Levine, Director of the Jewish Law Institute in Touro University.
“The United States Supreme Court has a solid conservative majority,” said Levine, “and the majority of justices by their own terms have stated that they are devoutly religious in their personal lives.”
Earlier this year, the Supreme Court ruled unanimously to allow a Christian flag to fly over Boston’s city hall and ruled, 8-1, in favor of a Texas death row inmate asking to hear vocal prayers. However, three religious cases pitted the court’s three liberal justices against its six conservatives; all ended with a 6-3 vote.
One of those cases, Carson v. Makin was particularly important, said University of Houston Law Professor Seth Chandler. In this case, he explained, the court made it more challenging for states to keep public education money away from private religious schools.
“Arizona has taken advantage of Carson v. Makin; all parents can now use state tax money to send their children to private or religious schools or pay home-schooling costs,” said Chandler, adding that West Virginia may follow suit.
How the Supreme Court ruled this term on religious cases is also indicative of its rulings on other amendments explained Professor Marc DeGirolami from St. John’s University School of Law. DeGirolami felt that the justices leaned heavily on a single idea this term — traditionalism.
“Traditionalism is defined by concrete practices, rather than principles or ideas or judicial precedence as the determinates of constitutional meaning and constitutional law,” said DeGirolami. “Conservative justices have adopted this method fairly comprehensively, but the progressive justices have used it as well.”
This traditionalism played a part in Dobbs v. Jackson where the justices voted along party lines 6-3 to uphold a Mississippi policy banning most abortions after 15 weeks of pregnancy.
Professor Valorie Vojdik from the University of Tennessee looked closely at this ruling, particularly as it related to religion and gender and the court cases filed in Texas and Florida to challenge the Dobbs ruling.
“It remains to be seen how the court will handle these claims,” said Vojdik. “This court today has aggressively extended the right to free exercise.” The free exercise clause protects a citizen’s right to practice their religion as they please, as long as the practice does not impact a "compelling" governmental interest or "public morals.”
How a single religion is impacted by the law in the United States can also have serious consequences on communities explained Emran El-Badawi, University of Houston Middle Eastern Studies Associate Professor and Program Director.
After 9/11, for example, various government polices had changes that “were detrimental to the religious freedom of the American Muslim community,” said El-Badawi.
Moderated by University of Houston Law Center Dean Leonard M. Baynes, the Law and Religion panel was the third event in a series on the 2022 Supreme Court Update. To access recordings from the earlier events, click here.
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