By / Dec 5

On Dec. 5, 2022, the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis, an important case for free speech and religious liberty. Since 2016, Lorie Smith, founder of the web design firm 303 Creative, has been in the process of challenging a Colorado law that violates her First Amendment rights. It is the same law that was used to target Jack Phillips and which led to the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. In that case, the court ruled favorably for Jack Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

A decision in this landmark case involving 303 Creative is expected in May or June of 2023.

What is this case about?

Like Phillips, and like Barronelle Stutzman of the Arlene’s Flowers Inc. v. Washington case, Lorie Smith is a creative professional who serves anyone through her business. She has created all kinds of custom websites for all types of people, but she refuses to use her “design skills and creativity to express messages that violate her deeply held religious convictions.” 

The state of Colorado views Smith’s work as a public accommodation, and thus, it is subject to Colorado’s Anti-Discrimination Act, which prohibits discrimination, including refusal of service, against any protected class, including sexual orientation or gender identity. This puts Smith’s desire to run her business according to her beliefs in direct conflict with Colorado’s law. 

Though the results of this case certainly impact religious liberty, the primary issue of this case is one of free speech. The central question before the court is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

What arguments were made?

Kristen Waggoner, CEO, president, and general counsel of Alliance Defending Freedom, argued on Smith and 303 Creative’s behalf. Her central argument was that the enforcement of Colorado’s Anti-Distcrimination Act against Smith violates her first amendment free speech rights by forcing her to create speech inconsistent with her religious beliefs. The argument went to great lengths to demonstrate that Smith’s decisions in what projects she will take on are not based on who is requesting her services but rather what message the work will convey.

As Supreme Court analyst Amy Howe explains, “This means . . . that she would ‘happily’ design graphics for an LGBTQ customer who runs an animal shelter. But she will not take on commissions that would be inconsistent with her Christian beliefs—including, she says, by promoting same-sex marriage—because a custom wedding website would ‘express approval of the couple’s marriage.’”

Furthering this idea that the message rather than the individual is central to the decision, in the argument, Waggoner concluded that Smith would not create a website for a hypothetical heterosexual couple who wanted to share their love story and include details of their relationship beginning with an affair and progressing after divorces because she believes that divorce and extramarital sex are wrong.

Both the Colorado solicitor general and the U.S. deputy attorney general argued that the Colorado law “merely regulates sales, rather than the products or services being sold, and therefore does not require or bar any speech.” The state argued that Smith is not being forced to create anything, but that whatever she decides to create must be available to be purchased by anyone. The arguments also focused on how a potential ruling could impact similarly suited circumstances where the individual does not want to serve those entering into an interracial marriage or a marriage between people with disabilities. 

Why does this case matter?

This case has significant implications for the free speech of all people. If the court were to rule against Smith, it would establish a precedent that cuts to the core of our nation’s fabric. The First Amendment protects free speech—even when that speech is unpopular. 

Beyond that, for us, as Christians, our beliefs on matters of marriage and gender are core to our convictions, pointing to God’s design and the living picture of Christ and his Church. Throughout the argument, it was apparent that the justices were operating from vastly different worldviews and perspectives, with several justices seemingly unaware of the centrality of this belief to the Christian faith.

As ERLC President Brent Leatherwood said today:

Christians have, for 2,000 years, said that marriage is a picture of the gospel. It was clear from today’s oral arguments that several justices have never encountered this notion on a prior occasion. This is unfortunate as it is central to understanding why a Christian creative professional would object to being compelled by the state to say something contrary to this deeply held belief. That is why Justice Gorsuch was exactly right when he seemed to suggest this case is not about who is being served, ‘but about what’ the state of Colorado is forcing upon the speech creator. Today’s proceedings reveal why the Court should rule in favor of 303 Creative because to do otherwise would be tantamount to giving the government keys to a paver to roll right over private business-owning Christians who disagree with whatever the prevailing cultural notions about marriage and family happen to be fashionable at a given moment.

It is essential that people of faith not only have the ability to believe these fundamental truths but also to live them out in the public square. No one should be forced to sacrifice their most deeply held beliefs to participate in the marketplace and contribute to our society. The ERLC is urging the court to rule in favor of 303 Creative and will be preparing Christians and churches to respond to this important decision next year.

By / Sep 12

Update: Since this explainer was originally posted, a stay has been agreed to by both Yeshiva University and YU Pride Alliance. This means that other student groups may operate normally, and Yeshiva does not have to recognize YU Pride Alliance on campus while its appeal is considered

On Wednesday, the Supreme Court ruled 5-4 to vacate a previous stay by Justice Sotomayor and deny Yeshiva University’s emergency request to intervene in its dispute over recognition of an LGBTQ group on campus. A New York court has ruled that Yeshiva must recognize the group on campus, despite it being a violation of Yeshiva’s deeply held religious beliefs, even while the university’s appeal works its way through state court. The ERLC joined a brief in this case asking the Supreme Court to provide relief for the university. The brief reasoned that this issue was not limited to Yeshiva University but has broader implications for religious institutions who wish to carry out their missions according to their deeply held religious beliefs. 

In its denial, the court said that Yeshiva University had other avenues in New York courts in which to seek relief before coming to the Supreme Court. However, in the dissent of the denial, four justices state that they “are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us.” This is a hopeful signal that if Yeshiva does not find relief in the state courts, it may likely return to the Supreme Court to again seek protection.

What are the facts of the Yeshiva University case?

Yeshiva University is a Modern Orthodox Jewish center of higher education. The university was petitioned by a student LGBT group (YU Pride Alliance) for recognition, which the university declined. The university argued that doing so would violate their mission as a religious training center. Though the university and its president, Rabbi Ari Berman, want students of all sexual orientations and gender identities to be welcomed, the university also wants to uphold their understanding of the Torah and its traditional understanding of gender and sexuality. The student group claims that failure to recognize the group has deprived them of funds which other groups receive, as well as the ability to notify students through a shared email list. 

YU Pride Alliance has petitioned lower courts to force the university to recognize their group. The New York state courts agreed with the plaintiffs, arguing that the university was primarily an education institution rather than religious organization. The university appealed the ruling stating, “As a deeply religious Jewish university, Yeshiva cannot comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.” 

What is the current status of the case?

In a ruling on Friday (Sept. 9), the Supreme Court in an order signed by Justice Sotomayor stayed the ruling of a New York State court which had ordered the university to recognize the student group. While the order was appealed, state court judges had refused to stay the order. The Supreme Court stay was overruled when the whole Supreme Court weighed in on Wednesday, Sept. 14, denying the request. Yeshiva University now must decide its next steps in the New York courts, but if it is unable to find relief, it is likely to return to the Supreme Court again.

As Baptist Press reported, “the school may ask state courts ‘to expedite consideration of the merits of their appeals,’ the justices said. It also may file a motion with the Appellate Division for permission to appeal to the New York Court of Appeals the denial of stay in the lower court and seek expedited consideration of the motion, according to the order.” The Supreme Court has generally been amenable to religious liberty cases in recent years, with a clear 6-3 conservative majority that has also often been able to secure votes from more liberal judges as well. 

What implications does the case raise for religious liberty?

At the heart of the Yeshiva University case is the right of religious organizations to teach and structure themselves according to their deeply held religious beliefs. The court’s initial ruling represents a clear overreach of government authority. The ruling would essentially force the university to choose between compliance with the law and sincerely held religious beliefs. Yeshiva does not engage in practices that are discriminatory in its failure to recognize the LGBT student group. Rather, it seeks to uphold its commitment to a traditional Orthodox understanding of gender and sexuality. The government has no clear and compelling interest in overruling the university, and as such should abstain from trampling the rights of the faithful.

At the same time, the case has wider implications because if courts can compel this private university, then they could also compel other religious organizations. At a moment when Congress has considered legislation such as the Equality Act, which would similarly force Christian and other religious institutions to support sexual orientation and gender identity laws, as well as the Respect for Marriage Act, which seeks to enshrine a federal right to same-sex marriage, there are clear points of conflict emerging between religious freedom and the sexual revolution. This court case is but the latest example of lower courts attempting to force religious institutions to change their religious convictions. 

How should Southern Baptists think about the case? 

Southern Baptists should stand with the defendants of Yeshiva University because we recognize that the rights of conscience and the free exercise of religious belief are matters beyond the state’s control. Yeshiva University seeks only to fulfill its mission to train Orthodox Jews to take their faith into a modern world, informed and shaped by a traditional reading of Torah. This is inseparable from who they are as an institution. To ask them to violate this is tantamount to asking Southern Baptist seminaries to do the same. 

Southern Baptists have long been defenders of religious liberty for all, including religious minorities. Though Yeshiva University holds a view that the wider culture does not understand, and frankly abhors, that does not give the courts the ability to trample the rights of conscience. This is why the ERLC joined with other religious organizations in support of Yeshiva University’s right to teach in accordance with deeply held beliefs. The ERLC and Southern Baptists remain committed to defending the free exercise of religion, and of the right of religious education institutions to build their curriculum around their sincerely held beliefs. 

By / Sep 2

In this episode, Brent and Lindsay discuss the United Nations’ report on human rights violations in China, the rejection of the Transgender Mandate at a Federal Appeals Court, life in the digital age, and Yeshiva University’s appeal to SCOTUS regarding a potential religious liberty violation. They also celebrate the beginning of college football season. 

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  • Dobbs Resource Page | The release of the Dobbs decision marks a true turning point in the pro-life movement, a moment that Christians, advocates and many others have worked toward tirelessly for 50 years. Let us rejoice that we live in a nation where past injustices can still be corrected, as we also roll our sleeves up to save preborn lives, serve vulnerable mothers, and support families in our communities. To get more resources on this case, visit ERLC.com/Dobbs.
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By / Jul 1

The Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization is only a week old, and already there are misperceptions, misunderstandings, and misconstruals about what abortion law will look like now that Roe v. Wade has been overturned. Here are four main misperceptions that have been expressed in light of the recent ruling and explanations of how to think through them.

Misperception #1: The Supreme Court took away a constitutional right. 

In a speech delivered on the same day the Supreme Court released the Dobbs decision, President Joe Biden said, “Today the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized.” Biden is implying that the U.S. Constitution contains a recognizable right to abortion, but the Supreme Court determined that is not the proper reading of the Constitution.

The court explained its reasoning, in part, by considering whether the right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The majority of the justices concluded that the right to obtain an abortion cannot be justified as a component of such a right, and that attempts to justify abortion through appeals to a broader right to autonomy and to “define one’s ‘concept of existence’ prove too much.” If there was a right to abortion, the court noted, then Roe and Casey would also allow as fundamental rights such things as illicit drug use and prostitution. 

There was never a “constitutional right to abortion,” only a legal fiction established by Roe and Casey to give that impression. The Supreme Court did not remove a right held by individuals but merely recognized the reality that the Constitution allows abortion to be an issue decided by the individual states. 

Misperception #2: Overturning Roe makes it harder to treat miscarriages and ectopic pregnancies. 

“The medical options used to treat some miscarriages, as well as some ectopic pregnancies, can be the same or similar to those prescribed for an abortion,” says the ERLC’s Chelsea Sobolik, “This makes it imperative to carefully define our terms.”

Take, for example, dilation and curettage (in which the preborn baby is removed through surgery) or dilation and evacuation (in which a probe-guided vacuum removes fetal tissue from the uterus). These procedures can be used in elective abortions (in which the child is killed before removal) or in circumstances when the child is already dead and needs to be removed from the woman’s body. Similarly, medications called mifepristone and misoprostol are sometimes used as abortifacients (i.e., medication to cause an abortion), but they can also be used to treat cases of miscarriage. 

“There is no current policy in place prohibiting the treatment of miscarriage or ectopic pregnancies, and many laws similarly exclude such circumstances from the definition of abortion,” says Sobolik. But she also points out that this misceperception has gained traction because some recently proposed state-level legislation included wording that would affect access to treatment for miscarriage or ectopic pregnancy. 

For instance, Sobolik notes that an abortion restriction bill was initially proposed in Ohio in 2019 advocating for the reimplantation of ectopic pregnancies—invoking the use of a nonexistent and medically impossible procedure—but was struck down in hearings. The Ohio lawmaker behind the bill later admitted that he had not researched ectopic pregnancies beforehand. 

Such misguided proposals have always been caught before they become law, and pro-life groups are working closely with state legislators to ensure that such unhelpful language does not find its way in any stage of the legislative process. 

Misperception #3: Anti-abortion laws do not protect the life of the mother. 

On the same day in 1973 that the Roe v. Wade decision was handed down, the Supreme Court also issued its decision in Doe v. Bolton. In that ruling, the court said that a state must permit a “health” exception to any laws restricting abortion. But “health” was defined so broadly that it allowed abortion in all nine months of pregnancy for nearly any reason, including the mental or emotional health of the mother. 

Abortion advocates claim that without that “health” exception that women’s lives will be put in danger, but every pro-life statute in states where abortion is being restricted currently has an exception for the life of the mother. Many of the states, such as Utah and Texas, also include exceptions for “harm to the physical health” of the mother along with exceptions for the life of the mother. 

Misconception #4: The individual states now have final say about abortion laws. 

The ruling in Dobbs says, “​​The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” While this means that the states can decide the issue, it also leaves open the possibility that a federal law could regulate abortion in all 50 states. 

Nothing in the Dobbs opinion prohibits the U.S. Congress from passing federal legislation to restrict, ban, or allow abortion. Whether such legislation could pass constitutional scrutiny remains to be seen. For now, given the even divide in the U.S. Senate, states will be tasked with regulating abortion as they see fit, but the possibility does remain that a future Congress could pass federal legislation on the issue.

Many Christians fervently prayed and planned for the overturning of Roe and Casey, yet never dreamed they would actually see the day. Now that it’s here, we rightly rejoice and celebrate. However, we also recognize that many in our broader culture are anxious about what life will be like in a post-Roe world, and that fear is largely supported by misinformation portrayed as fact. We must stand ready to pray for our neighbors and meet them with truth and compassion, demonstrating that a post-Roe culture is indeed a good one where women will be cared for and babies will be given a chance at life. 

By / Jun 27

WASHINGTON, D.C., June 27, 2022— The Ethics & Religious Liberty Commission of the Southern Baptist Convention applauds the Supreme Court’s 6-3 decision to protect the “Free Exercise and Free Speech Clauses of the First Amendment” in the case, Kennedy vs. Bremerton School District

This decision is a religious expression victory for teachers and coaches to privately express their deeply-held beliefs while working for schools. 

Brent Leatherwood, ERLC’s acting president, said the Supreme Court’s decision was “rightly determined.”

“As any Christian knows, our faith is deeply personal and rightly shapes every aspect of our lives. We live out our faith in any number of ways, both privately and publicly. Today’s case centered on the latter and the Supreme Court rightly determined that an individual employed by a school does not forfeit his or her constitutional right to free expression simply by entering ‘the schoolhouse gate’ or, as it were in this case, the field of play.

“Moreover, today’s decision reaffirms another aspect of constitutional law: our First Amendment rights travel together. We, and many others, have long held that religious liberty is our nation’s first freedom and that it bolsters and strengthens other foundational rights. The Court today strengthened this perspective by writing that the clauses of free expression, establishment and free speech are all complementary. If it were not already clear enough, this Court views religious liberty as a bedrock right in our free republic.”

The ERLC was involved with briefs at the petition for certiorari stage and before the Supreme Court on the merits, in support of a Washington state high school football coach who was suspended for kneeling and praying on the field after games. The brief urged the high court to accept the case and reverse the Ninth Circuit Court of Appeals’ decision that Joseph Kennedy’s act of praying – ultimately joined by some players — constituted a government establishment of religion.

In 2018, ERLC joined eight other groups in a brief that called for Supreme Court review and repudiation of the Ninth Circuit in the case, but the justices declined to grant the request at the time. The case returned to federal court and has successfully worked its way back through the judicial system.

By / Jun 21

In an affirmation of religious freedom, the Supreme Court ruled 6-3 in Carson v. Makin on June 21 that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

Chief Justice Roberts wrote the majority opinion joined by Justices Thomas, Alito, Gorsuch, and Barrett. Justice Breyer authored the dissenting opinion joined by Justice Kagan and Justice Sotomayor except for Part I-B. Justice Sotomayor also wrote a dissenting opinion.

This decision builds upon encouraging precedents set in previously decided cases concerning religious liberty. In Trinity Lutheran v. Comer and Espinoza v. Montana, states sought to bar religious institutions from using public funds even though those public benefits were not otherwise restricted. The Court ruled in favor of religious liberty in both cases and has now barred similar discriminatory maneuvering by Maine education officials. The Court ruled that parents who choose to participate in a tuition assistance program cannot have their constitutional right to free exercise abridged merely on the basis of sending their children to a religious school. This decision upholds religious liberty by reaffirming the precedent that states cannot exclude organizations and schools from receiving public benefits simply because they are religious. 

In the amicus brief the ERLC joined, we argued that Maine’s public education system, especially in light of how Maine defended its system in the courts, does not merely exclude religious schools — it discriminates against them.  

Below are key quotes from the majority opinion, concurrence, and dissent, highlighting how the court reached its decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more details on the religious liberty issues present in this case, see our explainer here. To keep up to date on all Supreme Court cases we are watching in 2022, visit ERLC.com/SCOTUS.

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From the Syllabus 

“Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, the schools do not qualify as “nonsectarian” and are thus ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment.” (1)

“The Free Exercise Clause of the First Amendment protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.’ The Court recently applied this principle in the context of two state efforts to withhold otherwise available public benefits from religious organizations.” (1-2)

“‘A State need not subsidize private education,’ the Court concluded, ‘but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” (2)

“The principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” (2) 

“Both that program and this one disqualify certain private schools from public funding ‘solely because they are religious.’ A law that operates in that matter must be subjected to ‘the strictest scrutiny.’” (2)

“Maine’s program cannot survive strict scrutiny. A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” (2)

“The First Circuit’s attempts to recharacterize the nature of Maine’s tuition assistance program do not suffice to distinguish this case from Trinity Lutheran or Espinoza.” (3)

“The First Circuit held that the ‘nonsectarian’ requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the ‘rough equivalent of the public school education that Maine may permissibly require to be secular.’ But the statute does not say anything like that. The benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.” (3)  

“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program-including the prohibition on denying the benefit based on a recipient’s religious exercise.” (3) 

“The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were ‘solely status-based religious discrimination,’ while the challenged provision here ‘imposes a use-based restriction.’ Trinity Lutheran and Espinoza held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” (3-4) 

Majority Opinion: Chief Justice John Roberts

“Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979– 1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be ‘a nonsectarian school in accordance with the First Amendment of the United States Constitution.’” (3)

“BCS and Temple Academy are both accredited by the New England Association of Schools and Colleges (NEASC), and the Department considers each school a ‘private school approved for attendance purposes’ under the State’s compulsory attendance requirement.” (5)

“In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (7)

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” (10)

“Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires.” (10)

“Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, post, at 13, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” (10-11)

“…it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools. But the key manner in which the two educational experiences are required to be ‘equivalent’ is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But ‘the definition of a particular program can always be manipulated to subsume the challenged condition,’ and to allow States to ‘recast a condition on funding’ in this manner would be to see “the First Amendment…reduced to a simple semantic exercise.” (13)

“The dissents are wrong to say that under our decision today Maine ‘must’ fund religious education. Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it.” (14)

“Montana argued that its case was different from Trinity Lutheran’s because it involved not playground resurfacing, but general funds that ‘could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate’ everything they do’…We explained, however, that the strict scrutiny triggered by status-based discrimination could not be avoided by arguing that ‘one of its goals or effects [was] preventing religious organizations from putting aid to religious uses’…And we noted that nothing in our analysis was ‘meant to suggest that we agree[d] with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.’” (15)

“In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” (16)

“Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” (18)

Dissenting Opinion: Justice Breyer

“The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the ‘play in the joints’ between the two Clauses.” (1)

“This means that a State cannot use ‘its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals…Nor may a State ‘adopt programs or practices in its public schools . . . which ‘aid or oppose’ any religion…This prohibition,’ we have cautioned, ‘is absolute.’” (2)

“In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.” (6)

“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education. What happens once ‘may’ becomes ‘must’?” (7)

“State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza, it is religious activity, not religious labels, that lies at the heart of this case.” (9)

“Maine does not refuse to pay tuition at private schools because of religious status or affiliation. The State only denies funding to schools that will use the money to promote religious beliefs through a religiously integrated education – an education that, in Maine’s view, is not a replacement for a civic-focused public education.” (14)

“…Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children teh religiously neutral education required in public school systems. And that, in significant part, reflects the State’s anti-establishment interests in avoiding spending public money to support what is essentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice.” (15)

“In my view, Maine’s nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Temple Academy creates a similar potential for religious strife as that raised by promoting religion in public school.” (15)

“Maine wishes to provide children within the State with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion.” (18)

Dissenting Opinion: Justice Sotomayor

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” (1)

“…The Court now holds for the first time that ‘any status-use distinction’ is immaterial in both ‘theory’ and ‘practice.’ … It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording government flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.” (3)

“Nonetheless, it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.” (5)

“What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ … Today the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic anti-establishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.” (5)

By / Jun 21

WASHINGTON, D.C., June 21, 2022—The Southern Baptist Convention’s Ethics & Religious Liberty Commission responded to the U.S. Supreme Court’s 6-3 ruling in the case Carson v. Makin.

The Court ruled today that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. This decision builds upon the encouraging precedents set in previously decided cases concerning religious freedom, such as Trinity Lutheran Church of Columbia Inc. v. Comer and Espinoza v. Montana Department of Revenue.

“Maine’s attempt to sidestep the Constitution was halted in its tracks today, and rightly so,” said Brent Leatherwood, acting president of the ERLC. “The justices decision here accurately comports with the fundamental nature of religious liberty in our nation. The Court rightly decided that parents who choose to participate in a program like the one in Maine cannot have their constitutional rights abridged merely because they choose to send their children to a religious school. Similar attempts to curtail free expression have rightly been labeled ‘odious’ by the Court in previous decisions, and Maine’s program can now be added to that infamous list.”

The Carson case arose out of the unique way that Maine provides free education to its 180,000 students. Every child in the United States is entitled to a free public education. In Maine, there are rural areas where students don’t have easy access to a public school. Given that limitation, some of the school districts allow parents to choose a private school in the area to teach their children. 

In this case, several families sent, or desired to send their children to private schools that are accredited but do not meet the nonsectarian requirement because they are religiously affiliated, and therefore, the families did not qualify for tuition assistance. They filed a lawsuit stating that Maine’s nonsectarian requirement violates the Constitution.

The ERLC joined amicus briefs both at the petition for certiorari stage and at the merits stage. The Carson ruling is important because it closes a loophole the First Circuit opened when upholding Maine’s exclusion of “sectarian” schools from its tuition assistance program. “Thankfully, today the Court rejected this discriminatory maneuvering by officials in Maine,” states the ERLC explainer on the case. “It reiterated the religious liberty afforded all citizens when exercising their faith in the course of their daily lives. Today’s holding is a substantial step forward in further enshrining the religious protections articulated in Trinity Lutheran and Espinoza.”

By / Jun 21

On June 21, the U.S. Supreme Court ruled in a 6-3 decision that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. Chief Justice John Roberts wrote the majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Breyer filed a dissenting opinion, in which Justices Kagan and Sotomayor joined. (Justice Sotomayor joined as to all but Part I–B.) Justice Sotomayor filed a separate dissenting opinion. 

This decision builds upon the encouraging precedents set in previously decided cases concerning religious freedom as some states—including Missouri and Montana—had sought to bar public funds from being used by religious institutions even though those public benefits were not otherwise restricted. In Trinity Lutheran Church of Columbia Inc. v. Comer, decided 7-2, the court upheld that the state cannot deny an institution a public benefit simply because of its religious status. The church was originally denied government funds to resurface its playground for preschoolers due to a provision in Missouri’s constitution that bars state funding for religious entities.

Similarly, the court issued a 5-4 ruling in Espinoza v. Montana Department of Revenue that prevents states from discriminating against religious schools and families. This case involved a generally available scholarship program in Montana designed to provide general support to students attending all types of private schools but was specifically not allowed to be used at religious schools. 

As stated in the Carson opinion, “Trinity Lutheran and Espinoza held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why.”

What is this case about?

This case arose out of the unique way that Maine provides free education to its 180,000 students. Every child in the United States is entitled to a free public education. According to the opinion, Maine is the most rural state in the Union, and there are areas where students don’t have easily accessible public education. Given that limitation, Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. 

In order for a school to be able to participate in this program—and receive government funding—the private school must meet the state’s minimum requirements, and it also must be “nonsectarian.” Functionally, this excludes a private religious school from participating in Maine’s public education program, because any school that provides religious instruction is considered “sectarian.”

Before 1981, parents could also direct the tuition assistance payments to religious schools. According to the ruling, “in the 1979– 1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program.” But in 1981, Maine “imposed a new requirement that any school receiving tuition assistance payments must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

In this case, several families sent, or desired to send their children to private schools which are accredited but do not meet the nonsectarian requirement because they are religiously affiliated. Bangor Christian Schools (BCS), one of the schools at the center of this case, was founded in 1970 as a ministry of a Baptist church.

The Carson family sent their daughter to BCS because of the school’s high academic standards and because the school’s Christian worldview aligns with their sincerely held religious beliefs. But because BCS didn’t qualify for tuition assistance payments, the Carsons paid the tuition for their daughter to attend BCS themselves.

Both BCS and Temple Academy (the religious school where Petitioners Troy and Angela Nelson sent their son) are accredited by the New England Association of Schools and Colleges (NEASC), and Maine’s Department of Education considers each school a “private school approved for attendance purposes” under the state’s compulsory attendance requirement. But the schools aren’t approved by the State of Maine, and the families did not qualify for tuition assistance. The families filed a lawsuit stating that Maine’s nonsectarian requirement violates the Constitution.

How did the ERLC engage this case?

The ERLC signed onto amicus briefs both at the petition for certiorari stage and when the case was before the Supreme Court on the merits.

The brief the ERLC joined on the merits argues that Maine’s public education system, especially in light of how Maine defended its system in the courts, does not merely exclude religious schools—it discriminates against them. The brief goes on to argue that the Supreme Court should adopt a per se rule against religious discrimination. In other words, where a state discriminates against religion, courts should immediately strike down the law rather than applying any kind of balancing test with state interests.

ERLC’s acting president Brent Leatherwood stated of this important win:

“Maine’s attempt to sidestep the Constitution was halted in its tracks today, and rightly so. The justices decision here accurately comports with the fundamental nature of religious liberty in our nation. The Court rightly decided that parents who choose to participate in a program like the one in Maine cannot have their constitutional rights abridged merely because they choose to send their children to a religious school. Similar attempts to curtail free expression have rightly been labeled ‘odious’ by the Court in previous decisions, and Maine’s program can now be added to that infamous list.”

Why does this decision matter?

In Espinoza v. Montana Department of Revenue, the Supreme Court held, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” 140 S. Ct. 2246, 2261 (2020).

The Carson case is important because it would close a loophole the First Circuit opened when upholding Maine’s exclusion of “sectarian” schools from its tuition assistance program. As the brief ERLC joined on petition for certiorari explains:

Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Maine argued that it was not excluding religious schools from participating in a public education program because the public benefit offered was for a secular education. It is easy to see how states would be able to continue excluding religious organizations from public benefits simply by redefining the nature of the benefit offered.

Thankfully, today the court rejected this discriminatory maneuvering by officials in Maine. It reiterated the religious liberty afforded all citizens when exercising their faith in the course of their daily lives. Today’s holding is a substantial step forward in further enshrining the religious protections articulated in Trinity Lutheran and Espinoza. 

By / May 2

Today, the U.S. Supreme Court unanimously ruled that the city of Boston violated the First Amendment rights of petitioners Harold Shurtleff and his organization, Camp Constitution, by refusing to allow the group to fly the Christian flag in front of City Hall. The court’s decision today is a win for free speech. Justice Breyer delivered the opinion of the court, with Chief Justice Roberts,  and Justices Sotomayor, Kagan, Kavanaugh, and Barrett joining. Other justices filed concurring opinions.

ERLC Acting President Brent Leatherwood stated of this victory:

“In a unanimous decision, the Court today resoundingly shot down the city of Boston’s incompetent attempt to abridge the free speech rights of an individual and his organization for communicating a ‘religious viewpoint.’​ The opinion of the Court lines up with many of the themes of the brief joined by the ERLC in this case. We view this decision as a welcome addition to our nation’s First Amendment jurisprudence.

The reality is, had Boston continued with its established track record of approving every request that came in, this issue never would have been adjudicated. Given the united admonition of Boston’s unconstitutional actions, I’m sure the city now wishes it had simply granted Mr. Shurtleff’s request in the first place.”

What is this case about?

The City of Boston manages three flagpoles in front of its City Hall. Typically, those flagpoles fly the American flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second, and Boston’s own local flag on the third. The City occasionally, upon request and approval, will fly another flag for a brief period of time rather than Boston’s flag, typically in conjunction with an event happening at City Hall.

In 2017, Harold Shurtleff, through his organization, Camp Constitution, petitioned to host an event at Boston City Hall, raise a Christian flag, and have members of the clergy speak about the religious history of Boston, the Commonwealth of Massachusetts, and the Constitution. The City denied Camp Constitution’s request to fly the Christian flag.

As noted in Justice Breyer’s opinion,

“As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or istead opened the flagpole for citizens to express their own views.”

Justice Breyer goes on to note, “Boston acknowledges that it denied Shurtleff ’s request because it believed flying a religious flag at City Hall could violate the Establishment Clause. And it admits this concern proceeded from the premise that raising the flag would express government speech.”

Following this denial, Camp Constitution sued the City of Boston claiming a violation of the organization’s First Amendment rights. Both the district court and U.S. Court of Appeals for the First Circuit ruled in favor of the City, and the Supreme Court heard oral arguments in the case on Jan. 18.

Why does this decision matter?

This case provided another victory in free speech jurisprudence, affirming the First Amendment rights of all organizations, including religious organizations, and clarifying the understanding of the Establishment Clause, with implications for religious speech at other limited public forums such as schools, city halls, and public libraries.

Becket Law stated that “Boston and the lower courts relied on an outdated understanding of the Establishment Clause [that] often ban[s] religious elements from the public square simply because they are religious.” They continue:

“This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.”

This case helps to clarify that misconception. In his concurrence, Justice Kavanaugh addresses this point,

“As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. . . On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like. . . Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

How did the ERLC engage this case?

The ERLC joined an amicus brief asking the Supreme Court to rule in favor of Camp Constitution. Our brief argued that the City of Boston violated the Free Exercise Clause and Establishment Clause and wrongly discriminated against the speech of an organization. As reasoned in our brief,

Providing organizations the opportunity to communicate on public property does not give the government the authority to discriminate based on the viewpoint of their speech, even when the forum is used at other times for the government’s own speech. That conclusion follows from both this Court’s forum analysis under the Free Speech Clause and its Free Exercise Clause precedents requiring religious organizations to be treated on a nondiscriminatory basis when government benefits are dispensed or restrictions imposed.

The ERLC believes our First Amendment rights travel together. A weakening of one is a weakening of all of the foundational rights contained in the First Amendment. The Supreme Court has taken a robust view of these foundational rights, and we are grateful that the justices once again ruled in favor of freedom of speech in the public square.

By / Apr 29

Every year the Supreme Court issues rulings in about a half dozen cases that have significant implications for religious liberty, human dignity, freedom of speech, and other concerns of special interest to Christians. Many Americans, though, find this process vague and mysterious and only hear about the decision the day it is reported by the news media. Here is what you should know about the process and when you can expect Supreme Court rulings. 

What are Supreme Court opinions?

An opinion announces a decision and provides an explana­tion for the decision by the court. It explains the legal rationale that the justices relied upon to reach the decision.

The main opinion is the binding decision of the court. If all justices agree to the ruling, it is a unanimous opinion. If at least half the justices agree, it is a majority opinion. If the decision is made by less than the majority (e.g., because one or more justices recuse themselves and didn’t vote), it would be a plurality opinion. 

The main opinion is typically written by one justice. The most senior justice in the majority gets to assign the author of the opinion, whether to themselves or to another justice.

Because the justices do not always completely agree about the reasons for an opinion, there are often multiple opinions issued. As the American Bar Association explains, “Jus­tices who agree with the result of the main opinion, or the resolution of the dispute between the two par­ties, but base their decision on a different rationale may issue one or more concurring opinion(s). Justices who disagree with the main opinion in both result and legal rationale may issue one or more dissenting opinion(s).”

When does the Supreme Court release opinions?

The Supreme Court operates on an annual rhythm known as the Term. The Term for the Supreme Court begins, by federal law, on the first Monday in October and lasts until the first Monday in October of the next year. 

The Term is divided between “sittings,” when the justices hear cases and deliver opinions, and intervening “recesses,” when they consider the business before the court and write opinions. Sittings and recesses alternate at approximately two-week intervals.

Technically, the court recesses at the end of June, but the work of the justices continues around the year. During the summer they do such work as considering motions and applications, and make preparations for cases scheduled to be argued later in the year.

Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the court takes the bench but no arguments are heard. Opinion release days are highlighted in yellow on the calendar of the court’s website. They begin being released at 10 a.m. EST.

Decisions that are unanimous are released sooner than those that have concurring and dissenting opinions. In general, though, the earliest that opinions are released is in December. Most come in April, May, or June, with the most controversial tending to come nearer to the end of the sitting. Court sessions typically continue until late June or early July. 

How do we know which opinions will be released on a given day?

We can’t. The Supreme Court doesn’t announce in advance which cases will be decided, so no one knows until the ruling is handed down. The court doesn’t even notify any of the lawyers in a case before it issues an opinion. Unless it is the last day before the summer recess, the lawyers don’t know whether they will get a decision in their cases.

The court also doesn’t specify on a given day how many opinions will be released — and doesn’t even announce when it is finished issuing opinions for the day. Court watchers, though, have a useful rule of thumb — sometimes call the R-number system which helps them know when the court is done releasing opinions that day. As SCOTUSBlog explains:

When the opinions are eventually published in the U.S. Reports, the official bound version of the court’s opinions, they are published chronologically, with the opinions for a particular day published in order of seniority. The R number, which appears to the left of the opinion date/docket number/case name on the court’s website, refers to the order in which the opinion will appear in the U.S. Reports. But because opinions are announced in order of reverse seniority, the opinions on the court’s website can’t be assigned an R number until all of the opinions have been posted. Therefore, the posting of the R numbers is a sign that the court is done issuing opinions for that day.

How does the court decide the order in which opinions will be released on a given day?

The opinions are posted by the court in order of reverse seniority. The chief justice, John Roberts, is always the most senior. The other justices are ranked according to how long they’ve been with the court. The current order of seniority is Clarence Thomas, Stephen Breyer (who just heard his last case and will retire), Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Because of seniority, if Justice Barrett has any opinions, hers are released first, followed by Justices Kavanaugh, Gorsuch, Kagan, and so on through the chief justice.

There are exceptions to this general reverse-seniority rule, for example, when the justices are announcing decisions in two or more cases involving similar issues and it makes more sense to announce one first.

Which opinions are the ERLC most concerned with this Term?

The ERLC has advocated on behalf of Southern Baptists in six different cases through filing amicus curie (friend-of-the-court) briefs with the Supreme Court. You can learn more about those cases at erlc.com/SCOTUS.