Washington Lawyer - November/December 2022 - 34

TAKING THE STAND
" Taking the Stand " appears periodically in
Washington Lawyer as a forum for D.C. Bar
members to address issues of importance
to them and that would be of interest to
others. The opinions expressed are the
author's own. For submissions, email
editorial@dcbar.org.
issued opinions that continued to weaken the
separation between church and state. For
example, in Carson v. Makin, the Court found
that a Maine tuition assistance program that
covered public and private schools could not
exclude religious schools, resulting in taxpayer
funding of religious education. Further, in
Shurtleff v. City of Boston, the Court ruled against
the City of Boston for rejecting a Christian
group's application to raise what it described as
the " Christian flag " outside City Hall. The Court
found that the city's rejection violated free
speech rights.
AMEN
W
By Luis Miguel Meléndez
here does religious
freedom end and discrimination
against marginalized
groups begin?
The U.S. Supreme Court is poised
to examine the ever-changing line,
and after the end of its most recent
term, it appears to be leaning
toward an expanded view of religious
freedom - at the expense
of the LGBTQ+ community, marginalized
genders, religious minorities,
and other disenfranchised groups.
Earlier this year, the Supreme Court announced
it would hear a case centering on the expansion
of religious exemptions from civil rights laws
during its 2022-2023 term. Specifically, in 303
Creative LLC v. Elenis, the Court will decide
whether a Colorado-based graphic design firm
has the constitutional right to deny services to
same-sex couples seeking designers to create
their wedding websites. In doing so, the Court
will determine whether the Colorado AntiDiscrimination
Act, which prohibits businesses
open to the public from discriminating against
(or indicating their intent to discriminate against)
LGBTQ+ people, violates the Free Speech Clause
of the First Amendment by compelling an artist
to speak or stay silent. This case will have significant
consequences for employers, specifically
businesses engaged in expressive conduct, and
for members of communities traditionally ostracized
by religious groups.
In deciding 303 Creative, the Court will likely
continue its recent trajectory of fortifying religious
freedoms while softening other constitutional
guarantees. In 2021 the Court in Fulton v.
City of Philadelphia ruled in favor of a Catholic
foster care agency that, on religious grounds,
refused to work with same-sex couples pursuant
to a contract with the City of Philadelphia.
Further, in its most recent term, the Court
34 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2022
TO THE PASSING OF THE
ESTABLISHMENT
CLAUSE?
Finally, in Kennedy v. Bremerton School District,
the Court again considered the interplay
among the First Amendment's protections,
presenting a historic victory for advocates of
an expanded view of religious freedom. Until
recently, the Supreme Court had long cited
precedents that prohibited pressuring public
school students to take part in religious activities.
Many of these precedents relied on the
Establishment Clause, which bars the government
from " establishing " a religion or showing
preference for one religion over another.
However, in Kennedy the Court found that a
public high school football coach had a right to
pray on the 50-yard line immediately after each
game. The coach, Joseph Kennedy, argued that
the school violated his First Amendment rights
to free speech and the free exercise of religion
when it placed him on paid administrative
leave for praying on the field. The school argued
that prayer in the school stadium gave
the appearance that the school was endorsing
Kennedy's religion, and it disciplined him when
he refused an order to stop. The majority found
that the school's actions constituted an illegal
hostility toward religion.
The justices expressed not only conflicting
interpretations of the law, but also clashing
views on the facts of the case. The majority
found that Kennedy " offered his prayers quietly
while his students were otherwise occupied "
and that he " never pressured or encouraged
any student to join. " However, the dissenting
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Washington Lawyer - November/December 2022

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