BLACKWELL: IT'S MORNING AGAIN FOR RELIGIOUS FREEDOM IN AMERICABy Ken Blackwell Senior Fellow for Human Rights and Constitutional Governance
The past two weeks have seen good news for Americans who care about their religious liberty, as strong statements came from the Supreme Court and the state of Colorado in defense of the First Amendment’s guarantees of religious expression.
First came oral arguments at the Supreme Court in the case of The American Legion v. American Humanist Association, which concerns the constitutionality of a WWI memorial. When Gold-Star mothers teamed with The American Legion to build the memorial on private land in Maryland nearly 100 years ago, they wanted to emulate the cross-shaped headstones in France under which their sons were buried. A state commission eventually bought the land, and a federal court ruled last year that the cross on public land amounted to a state endorsement of Christianity.
But in oral arguments last week, justices didn’t seem convinced. According to CNN, “A majority of the Supreme Court suggested Wednesday that a 40-foot cross on public land in Maryland that was built to honor fallen soldiers in World War I does not violate the separation of church and state.” This is as it should be. Any reasonable consideration of the Constitution and its history makes clear that expressions of faith in public do not necessarily amount to state coercion.
That would be obvious to anyone who strolls through Arlington National Cemetery and sees headstones with the Star of David or a cross. Or, for that matter, to anyone who’s read a speech by George Washington or heard one delivered by Barack Obama or Donald Trump. The Establishment Clause protects Americans from being forced to adhere to a single state-approved religion — it is not supposed to drive believers underground.
Kelly Shackelford of First Liberty Institute, a law firm representing The American Legion, says that he’s “hopeful the Court will not only end the attacks on this memorial, but will clarify the law and put an end to the attacks on memorials nationwide.” Let’s hope that the indications from oral arguments are accurate, and the justices overturn the lower court’s misguided and ahistorical decision.
The second piece of good news for religious freedom is less obvious, as it came from a case the Supreme Court decided not to hear. The justices declined to decide whether New Jersey’s state supreme court was right to rule that a county program can prohibit religious buildings from receiving public grants. Although the justices declined to hear the case based on uncertainty regarding details of the county’s program, they did not necessarily agree with the lower court’s ruling.
Justice Kavanaugh wrote a statement, joined by Justices Alito and Gorsuch, declaring that the New Jersey court’s decision “is in serious tension with this Court’s religious equality precedents. As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Free Exercise Clause and the Equal Protection Clause.” In short, these justices clearly recognize that a religious nature or purpose does not exclude an institution — or building — from receiving aid simply on the basis of their religious status. It is important for Americans to hear such clear expressions of that principle.
Finally, the state of Colorado dropped its second case against Jack Phillips, the baker who was vindicated last year when the Supreme Court ruled that the Colorado Civil Rights Commission had violated his constitutional rights by fining him when he declined to bake a custom cake to celebrate a same-sex wedding. The majority ruled then that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” But shortly after that victory, another Colorado resident filed a complaint because Mr. Phillips declined to bake a cake for gender transition party. This time, though, the Colorado Civil Rights Commission decided to dismiss its action against Phillips. The agency seems to finally understand that the state cannot compel anyone to express statements that run counter to his or her deeply held religious beliefs.
These events are especially encouraging when you consider that taken together, they defend both the free exercise and the establishment clauses of the First Amendment. The Bladensburg should make clear that the public display of a passive symbol is not the establishment of a religion; Justice Kavanaugh’s statement confirms discriminating against a religious institution undermines free exercise; and Colorado decided not to coerce a religious man into expressing ideas that run contrary to his beliefs.
All in all, a good series of events for our religious freedoms — not that the fight is over. People who misunderstand the Constitution or simply resent religious belief will continue to subvert the First Amendment. Freedom-loving Americans must continue to be wise and vigilant.