Washington Lawyer - November/December 2022 - 35

TAKING THE STAND
opinion (authored by Justice Sonia Sotomayor)
stated that the majority " misconstrue[d] the
facts " and, in a rare move, included pictures
of Kennedy surrounded by students and reporters,
conducting his prayers on the field.
The dissenting opinion in Kennedy found that
the majority's decision " elevates the religious
rights of a school official, who voluntarily
accepted public employment . . . over those
of his students, who are required to attend
school " and who may feel obligated to join
in prayer. Justice Sotomayor also argued that
" [t]he Court now charts a different path, yet
again paying almost exclusive attention to the
Free Exercise Clause's protection for individual
religious exercise while giving short shrift to
the Establishment Clause's prohibition on state
establishment of religion. "
In reaching its decision, the Court gave substantial
weight to the First Amendment's Free
Exercise Clause while stripping the Establishment
Clause of much of its weight, leaving
questions of whether, how, and when the
Court will enforce it in future cases.
The Kennedy decision essentially overturned
Lemon v. Kurtzman, a 1971 ruling that favored
neutrality toward religion and provided a framework
for determining whether a government's
action violated the Establishment Clause. To
pass the Lemon test, the action had to have a
secular purpose, could neither advance nor
inhibit religion, and could not result in " excessive
government entanglement " between church
and state. Instead, the Court in Kennedy held that
the Establishment Clause " must be interpreted
by 'reference to historical practices and understandings'
[and] 'accor[d] with history and faithfully
reflec[t] the understanding of the Founding
Fathers.' "
This shift raises questions similar to those that
originalism often presents: Are we to interpret
the Establishment Clause through the " understanding "
of people in power when it was
ratified in 1791? Or are we instead to interpret
it through the lens of 1868, when the 14th
Amendment was ratified, or that of the 1940s
when the Court applied the Free Exercise
Clause and Establishment Clause to states via
the 14th Amendment in Cantwell v. Connecticut
and Everson v. Board of Education, respectively?
Is the Court setting the stage to overturn the
incorporation of the Establishment Clause altogether,
as Justice Clarence Thomas has previously
urged? Take, for example, his concurring
opinion in Elk Grove Unified School District v.
Newdow, where he wrote, " I would take this
opportunity to begin the process of rethinking
the Establishment Clause . . . the Establishment
Clause is a federalism provision, which, for this
reason, resists incorporation. "
While the justices' language regarding " reference
to historical practices " is vague, what is
clear is the threat originalism poses to the civil
rights of marginalized groups, as well as the
current Court's favoring of Christianity as a protected
faith. For example, compare Dunn v. Ray
(finding that a Muslim death-row inmate in
Alabama did not have the right to have an
imam present during his execution instead of
the Christian chaplain provided by the state's
execution protocol) with Gutierrez v. Saenz
(staying the execution of a Catholic Texas
The Court has made clear that
when religious faith, especially
that practiced by Christians,
conflicts with the constitutional
rights of others, religion prevails.
death-row inmate who requested a Christian
chaplain to accompany him during his execution,
calling the state's ban on clergy from execution
chambers " governmental discrimination
against religion " in violation of the
Constitution).
Kennedy forecasts future rulings deciding the
point where religious liberties end and discrimination
begins. In his concurring opinion, Justice
Thomas emphasized that " the Court's opinion
does not resolve . . . whether or how public
employees' rights under the Free Exercise
Clause may or may not be different from those
enjoyed by the general public. " With this statement,
Thomas casts uncertainty over public
employees' ability to deny providing services
to others on religious grounds.
His language is also reminiscent of his concurring
opinion in the Court's denial to hear Davis
v. Ermold. Kim Davis, a county clerk in Kentucky,
made headlines when she cited her religious
beliefs to justify her refusal to issue, or allow
her deputies to issue, marriage licenses to
same-sex couples following Obergefell v.
Hodges. In his opinion, Justice Thomas agreed
with the denial of certiorari because it did not
" cleanly present " the " important questions
about the scope " of Obergefell, but referred to
Davis as " one of the first victims of [the] Court's
cavalier treatment of religion. " Thomas argued
that the case " enables courts and governments
to brand religious adherents who believe that
marriage is between one man and one woman
as bigots, making their religious liberty concerns
that much easier to dismiss. "
In its recent decisions, the Court has proven its
willingness to give heightened deference to
religious liberties above other constitutional
guarantees. The Court has made clear that
when religious faith, especially that practiced
by Christians, conflicts with the constitutional
rights of others, religion prevails. Taking these
decisions and the ideological background of
the Court into account, this deference is likely
to continue.
For government employees, this means that
the wall of separation between church and
state may be further weakened, possibly
allowing more religious expression in the workplace
than is currently permitted. This shift
could pave the way for government employees,
such as Davis, to cite religious liberty
and deny services to people who do not
conform to their personal views. For private
Christian employers, at a minimum those providing
expressive services, discrimination
against those they deem to hold " immoral "
values could be deemed constitutionally protected
activity. Considering the wide array of
conflicting views between and within Christian
denominations, this protection could affect
Christians and non-Christians alike.
Placing religious freedom over other rights can
have serious consequences. However, how far
the courts will limit the rights of marginalized
groups in the name of religious liberty remains
to be seen. Beyond denial of services, do fundamentalist
believers have the right - on religious
grounds - not to work in the vicinity
of members of the LGBTQ+ community? Can
others ask that their health insurance plans not
cover abortion services? Without question, this
shift in the Court poses a test for the First
Amendment and our ability to function as
a society.
Luis Miguel Meléndez is an associate attorney
at Kalijarvi, Chuzi, Newman & Fitch, P.C. in
Washing ton, D.C. He can be reached at
lmelendez@kcnlaw.com.
NOVEMBER/DECEMBER 2022
* WASHINGTON LAWYER 35
Washington Lawyer - November/December 2022

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