The U.S. Supreme Court overturns Roe v. Wade
By / Jul 1

In this episode, Brent and Lindsay discuss the historic ruling of the U.S. Supreme Court in Dobbs, overturning the abortion precedents set in Roe and Casey. They celebrate the decision and discuss the call of the church in a post-Roe world. They also talk about the victory for religious liberty at the Supreme Court in the Coach Kennedy case. 

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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.
  • Sexual Ethics Resource Page | Do you ever feel overwhelmed by the constant stream of entertainment and messages that challenge the Bible’s teachings on sexual ethics? It often feels like we’re walking through uncharted terrority. But no matter what we face in our ever-shifting culture, God’s design for human sexuality has never changed. The ERLC’s new sexual ethics resource page is full of helpful articles, videos, and explainers that will equip you to navigate these important issues with truth and grace. Get these free resources at ERLC.com/sexualethics.

Explainer: Supreme Court strengthens religious expression for teachers and coaches
By / Jun 27

On June 27, in a 6-3 decision, the U.S. Supreme Court ruled that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” This is an important decision for religious expression, especially for teachers and coaches’ ability to privately express their religious belief while working for schools.

Justice Gorsuch delivered the opinion of the court, with Justices Roberts, Thomas, Alito and Barrett joining. Justice Kavanaugh also joined the majority opinion, except as to Part III–B. Justices Thomas and Alito filed concurring opinions. Justice Sotomayor filed a dissenting opinion, in which Breyer and Kagan joined.

What is this case about?

Coach Kennedy, a high school football coach in Bremerton, Washington, had a tradition of kneeling and quietly praying at the 50-yard line after football games. Kennedy was suspended by Bremerton High School, and later fired because of his private prayers. In fact, the “District Court found that the ‘sole reason’ for the District’s decision to suspend Mr. Kennedy was its perceived ‘risk of constitutional liability’ under the Establishment Clause for his ‘religious conduct’ after three games.” He filed a lawsuit against the school district, arguing that the school’s actions violated both the First Amendment’s Free Speech and Free Exercise Clauses. 

Our brief to the court stated that, “Coach Kennedy . . . acted after a game, without directing his speech or conduct toward any particular audience, without anyone in compulsory attendance, without his inviting anyone, and on an outdoor field open to the entire public (not just students and other school employees).” It goes on to state, “this was a private gathering of like-minded individuals, and that gathering was itself shielded by the First Amendment protections of religion, speech, and assembly.”

Kennedy was simply exercising his constitutional right to free exercise and free speech. The Free Exercise Clause of the First Amendment “protects religious exercises and the Free Speech Clause provides overlapping protection for expressive religious activities.” Both of these Constitutional protections were violated in this case.

The Lemon Test

In addition to ruling specifically for Coach Kennedy, the court in this decision also officially replaced the Lemon Test, a three-part test from a 1971 ruling that determined when a law was in violation of the Establishment Clause. As the opinion notes,“The Lemon approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. In time, that approach also came to involve estimations about whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement’ of religion.”

In recent years, the court has increasingly disfavored the Lemon Test. Justice Gorsuch states that due to “the apparent ‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot.” Further, “the Court has explained that these tests ‘invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators.”

Despite the previous abandonment of this test, the court had not officially replaced Lemon with a new standard, leaving a void of confusion for lower courts and legislators. However, in this decision, the court provided needed clarity and ruled that “in place of Lemon and the endorsement test . . . the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

The Lemon Test restricted religious expression, and the justices rightly ended this  “ahistorical” standard.

How did the ERLC engage this case?

The ERLC was involved with briefs at the petition for certiorari stage and before the Supreme Court on the merits. The brief urged the high court to accept the case and reverse the Ninth Circuit Court of Appeals’ decision that 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 worked its way back through the judicial system. The brief the ERLC signed argued that, 

. . . the school should have allowed the exercise of the constitutional freedoms to speak, pray, and assemble. It cannot convert its improper halting of such practices into a legal virtue by resorting to the Establishment Clause, as that clause certainly did not proscribe the unassisted, privately initiated exercise of religion by Coach Kennedy.

The Establishment Clause does not require public schools to be policed as religion-free zones, and a reasonable, objective person understands that teachers can act in private capacities, even while on school grounds and even during school hours. When teachers do so, their freedoms are not to be curtailed, and they are not to be punished.

The ERLC will always protect religious freedom and religious expression, before the courts, Congress and the administration.

Why does this decision matter? 

This decision strengthens religious expression for teachers, coaches, and people living out their faith in the public square. As the majority opinion states, the Free Exercise clause “protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.” As the court rightly acknowledged, the Establishment Clause, the Free Exercise Clause and the Free Speech clause are not separate units, but rather appear in the same sentence of the same Amendment.” Our First Amendment rights travel together, and must be equally honored and protected.

As ERLC’s acting president, Brent Leatherwood said,

“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.”

This case is another victory in a long line of jurisprudence that further expands Americans’ robust rights of religious expression. Across our convention of churches, faithful Southern Baptists can be found working in the public education sector. As Christians, Scripture calls us to do “all in the name of the Lord Jesus, giving thanks to God the Father through him” (Col. 3:17). This decision bolsters believers’ ability to do this in the public square without fear of repercussions.

Top Quotes: Supreme Court affirms free religious expression for football coach
By / Jun 27

In an affirmation of religious expression, the Supreme Court ruled 6-3 in Kennedy v. Bremerton on June 27 that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” The court found that Coach Kennedy’s private prayers after football games were “private speech, not government speech,” and teachers and students need not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Justice Gorsuch wrote the opinion of the court joined by Justices Thomas, Alito, and Barrett. Kavanaugh also joined the majority opinion except for Part III-B. Justices Thomas and Alito wrote concurring opinions. Justice Sotomayor authored the dissenting opinion, joined by Justices Breyer and Kagan.

The ERLC applauds the court for continuing to strengthen our nation’s long legacy of religious expression. First Amendment protections travel together, and the court was wise to observe that Coach Kennedy’s personal expressions of religious devotion created “no conflict between the constitutional commands of the First Amendment.”

In the amicus brief the ERLC joined, we argued that “the Establishment Clause does not require public schools to be policed as religion-free zones.” We agree with the court that public employees retain the freedom to act in private capacities while on the job, and teachers and coaches should be able to practice their religious beliefs without fear of excessive state incursion.

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 

“The District Court found that the ‘sole reason’ for the District’s decision to suspend Mr. Kennedy was its perceived ‘risk of constitutional liability’ under the Establishment Clause for his ‘religious conduct’ after three games.” (1)

“The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.” (1) 

“The District, like the Ninth Circuit below, insists Mr. Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny.” (4)

“But—given the apparent ‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot…In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” (4)

“The District next attempts to justify its suppression of Mr. Kennedy’s religious activity by arguing that doing otherwise would coerce students to pray…The Ninth Circuit did not adopt this theory in proceedings below and evidence of coercion in this record is absent.” (5)

“Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.” (6)

Majority Opinion: Justice Gorsuch

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor.” (1) 

“Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” (12) 

“In this case, the District’s challenged policies were neither neutral nor generally applicable….Prohibiting a religious practice was thus the District’s unquestioned ‘object.’ The District candidly acknowledged as much below, conceding that its policies were ‘not neutral’ toward religion.” (14) 

“Of course, none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish…If a public employee speaks ‘pursuant to [his or her] official duties,’ this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline because that kind of speech is—for constitutional purposes at least—the government’s own speech.” (15)

“At the other end of the spectrum, when an employee ‘speaks as a citizen addressing a matter of public concern,’ our cases indicate that the First Amendment may be implicated and courts should…attempt to engage in ‘a delicate balancing of the competing interests surrounding the speech and its consequences.’” (15)

“It seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech.” (17) 

“Others working for the District were free to engage briefly in personal speech and activity…That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second-class speech.” (19)  

“It is true that this Court and others often refer to the ‘Establishment Clause,’ the ‘Free Exercise Clause,’ and the ‘Free Speech Clause’ as separate units. But the three Clauses appear in the same sentence of the same Amendment.” (20) 

“In Lemon this Court attempted a ‘grand unified theory’ for assessing Establishment Clause claims…that approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion.”(22) 

“In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings. [T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accord with history and faithfully reflect the understanding of the Founding Fathers.’” (23)

“Now, [the school district] says, it was justified in suppressing Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray. And, the District says, coercing worship amounts to an Establishment Clause violation on anyone’s account of the Clause’s original meaning.” (24)

“To be sure, this Court has long held that government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory.’ But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.” (24-25)

“In short, Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate.” (26)

“Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” (26)

“Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But ‘offense… does not equate to coercion.’” (26-27)

“Here, the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students…Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.” (28)

“We are aware of no historically sound understanding of the Establishment Clause that begins to ‘make it necessary for government to be hostile to religion’ in this way.” (29)

“In truth, there is no conflict between the constitutional commands before us. There is only the ‘mere shadow’ of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” (31)

“The only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.” (31-32)

Concurring Opinion: Justice Thomas

“I write separately to emphasize that the Court’s opinion does not resolve two issues related to Kennedy’s free-exercise claim.” (1)

“First, the Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public.” (1)

“We have held that ‘the First Amendment protects public employee speech only when it falls within the core of First Amendment protection — speech on matters of public concern.’ It remains an open question, however, if a similar analysis can or should apply to free-exercise claims in light of the ‘history’ and ‘tradition’ of the Free Exercise Clause.” (1-2)

“Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee’s religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny…A government employer’s burden therefore might differ depending on which First Amendment guarantee a public employee invokes.” (2)

Concurring Opinion: Justice Alito

“Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity.” (1)

“The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed.” (1)

Dissenting Opinion: Justice Sotomayor

“This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct.” (1)

“The 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.” (1)

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location.” (1-2)

“Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with ‘overtly religious references,’ which Kennedy described as prayers, while the players kneeled around him.” (4)

“The District reiterated that ‘all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities’…To avoid endorsing student religious exercise, the District instructed that such activity must be non-demonstrative or conducted separately from students, away from student activities.” (6)

“While Kennedy’s letter asserted that his prayers ‘occurr[ed] on his own time after his duties as a District employee had ceased,’ the District pointed out that Kennedy ‘remain[ed] on duty’ when his prayers occurred ‘immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.’ The District further noted that ‘[d]uring the time following completion of the game, until players are released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is clearly on duty and paid to continue supervision of students.” (8)

“This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.” (13-14)

“Taken together, these two Clauses (the Religion Clauses) express the view, foundational to our constitutional system, ‘that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.’” (14)

“First, government neutrality toward religion is particularly important in the public school context given the role public schools play in our society. ‘The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny,’ meaning that ‘[i]n no activity of the State is it more vital to keep out divisive forces than in its schools.’” (15)

“The State ‘exerts great authority and coercive power’ in schools as a general matter ‘through mandatory attendance requirements.’ Moreover, the State exercises that great authority over children, who are uniquely susceptible to “subtle coercive pressure.” (15)

“Given the twin Establishment Clause concerns of endorsement and coercion, it is unsurprising that the Court has consistently held integrating prayer into public school activities to be unconstitutional, including when student participation is not a formal requirement or prayer is silent.” (16)

“Permitting a school coach to lead students and others he invited onto the field in prayer at a predictable time after each game could only be viewed as a post-game tradition occurring ‘with the approval of the school administration.’” (17)

“The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work…That BHS students did not join Kennedy in these last three specific prayers did not make those events compliant with the Establishment Clause. The coercion to do so was evident.” (18-19)

“But existing precedents do not require coercion to be explicit, particularly when children are involved. To the contrary, this Court’s Establishment Clause jurisprudence establishes that ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’” (19)

“Constitutional rights, however, are not absolutes. Rights often conflict and balancing of interests is often required to protect the separate rights at issue (noting that ‘the presence of countervailing interests . . . is what makes a constitutional question hard, and what require[s] balancing).” (20)

“First, as to Kennedy’s free speech claim, Kennedy ‘accept[ed] certain limitations’ on his freedom of speech when he accepted government employment.” (20)

“The last three games proved that Kennedy did not intend to pray silently, but to thrust the District into incorporating a religious ceremony into its events, as he invited others to join his prayer and anticipated in his communications with the District that students would want to join as well.” (22)

“Finally, the Court acknowledges that the Establishment Clause prohibits the government from coercing people to engage in religion practice, but its analysis of coercion misconstrues both the record and this Court’s precedents.” (30)

“The Court’s suggestion that coercion must be ‘direc[t]’ to be cognizable under the Establishment Clause is contrary to long established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that ‘there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.’” (30)

“The question before the Court is not whether a coach taking a knee to pray on the field would constitute an Establishment Clause violation in any and all circumstances.It is whether permitting Kennedy to continue a demonstrative prayer practice at the center of the football field after years of inappropriately leading students in prayer in the same spot, at that same time, and in the same manner, which led students to feel compelled to join him, violates the Establishment Clause. It does.” (33)

“Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.” (35)

How to talk to your church about the Dobbs Supreme Court decision
By / Jun 24

Today, the Supreme Court announced a historic decision that overturns the disastrous precedent set in Roe v. Wade and Planned Parenthood v. Casey. This decision represents a moment that we all have been praying for and working toward for decades.  Many of you as pastors and ministry leaders are seeking to lead your people well in light of this momentous decision, as well as through the contentious times ahead for our nation.

We want to partner with you in this effort and have produced several resources to this end. Below is a statement you may want to use or adapt in order to communicate with your church about today’s Supreme Court ruling on the Mississippi abortion case.

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What has happened: The U.S. Supreme Court released a historic ruling in the Dobbs v. Jackson Women’s Health Organization case on Friday, overturning the disastrous abortion precedent set by the court and sending abortion decision-making back to the states. We are now living on the backside of a deadly national legal environment that existed for nearly 50 years, under which over 60 million babies were aborted. This is a moment many have prayed and advocated for, and we thank God for his provision and for those who have worked tirelessly toward this day in our nation’s history.

What happens next:  The question of abortion is now a state-by-state decision, and those who believe that life begins at conception must work to advance pro-life measures and create a culture of life so that the preborn are protected and families are supported in every state (Psa. 139:13-16). Out of love of God and for our neighbors, we must continue to advocate for just policies that honor the sacredness of life and seek to elect representatives that will enact laws to make abortion illegal, protect the preborn, serve abortion-vulnerable mothers, and criminalize abortion providers. (Mark 12:31).

Even as we work toward making abortion illegal in our states and our nation, the reasons why women seek abortion won’t change overnight. More than ever, women and families will need compassion, hope, and practical help to meet their needs (Col. 3:12). The work of pregnancy resource centers will be critical in each community and are central to the goal of supporting families. More children than ever will be in need of loving homes, whether that be through foster care, adoption, or supporting women in crisis who choose life. The Church has been called to and equipped for this very moment. 

Keep in mind: Many in our midst bear the emotional and physical scars of abortion, whether they themselves have had an abortion or have participated in one. Let us cling to the truth of the gospel and the hope of our salvation in Christ that overcomes even our darkest stains. “There is therefore now no condemnation for those who are in Christ Jesus” (Rom. 8:1). No matter our sin, God has told us “as far as the east is from the west, so far does he remove our transgressions from us” (Psa. 103:12). Regardless of our pasts and our individual sins, we have all fallen short of the glory of God (Rom. 3:23).

Satan is the accuser and delights in heaping on shame and sowing lies. In the days and weeks to come, we need to redouble our efforts to stand for the dignity of every human being, including the preborn. As believers, we must fight the accusations, shame, and lies with the truth of the gospel, rooted in love of God and neighbor (Matt. 22:37-39)

How we can pray:  

  • Praise to God for hearing our prayers and for rescuing more innocent lives from death, (Psa. 10:14-18)
  • Pray for more laws to protect the preborn to be enacted and for the dignity of the preborn to be cherished throughout our communities, (Prov. 15:29)
  • Pray that a robust culture of life would take root in our nation, making abortion not just illegal but unthinkable, (Isa. 44:24)
  • Pray for the work of pregnancy resource centers, clinics, and churches in supporting women and families experiencing unintended pregnancies to continue and increase, (2 Cor. 9:8)
  • Pray for those who have experienced or participated in abortion to know the Lord’s mercy and forgiveness of all sins for those who repent, (Rom. 8:1)
  • Pray for the church to be a place of refuge for all who have been caught in the lies of the sexual revolution, (Psa. 14:1)
  • Pray for peace in our nation and for the Lord to stem thoughts of violence, (James 3:18)
  • Pray for more families to open their homes to foster care and adoption to serve children in need, (Matt. 18:5) and 
  • Pray that God would be glorified and his character would be displayed in all that we do and say in these critical days (Matt 5:16). 

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We are standing with you in this moment. And it is our prayer that this guide will enable you to communicate well with those in your church so that they can go into your surrounding community as salt and light, serving the vulnerable and sharing the hope of the gospel.

Explainer: Supreme Court rules no constitutional right to abortion
By / Jun 24

Today, the U.S. Supreme Court, in a landmark decision, held that “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.” 

This is the most significant moment in the pro-life movement in decades, and we should rightly celebrate this decision that will save thousands of precious preborn lives. In a 6-3 decision, the Court upheld the Mississippi abortion law regulating abortion at 15 weeks, which was at the center of the case. However, Chief Justice John Roberts did not join the other five justices of majority in overturning the horrendous precedent set in both Roe v. Wade and Planned Parenthood v. Casey. 

What is the Dobbs case about?

In December 2021, the Supreme Court heard oral arguments in a case titled, Dobbs v. Jackson Women’s Health Organization. The justices were reviewing a Mississippi law titled the “Gestational Age Act” that prohibited abortions after 15 weeks’ gestation, except in a medical emergency and in cases of severe fetal abnormality. This law replaced and directly challenged the ‘viability standard’ created by Roe and Casey. The court examined whether pre-viability restrictions on elective abortions are unconstitutional.

In Roe v. Wade, the Supreme Court admitted that the state has a legitimate interest in protecting unborn human life, but concluded that that interest did not become compelling until viability, because at that point the unborn child “has the capability of meaningful life outside the mother’s womb.” However, the choice of viability as the point before which a state may not forbid abortion is entirely arbitrary. Even the author of Roe and two authors of Casey’s three-justice plurality have admitted this. When the “viability standard” was initially created in 1973, viability was around 28 weeks, but it is now around 21 weeks. The viability line will keep moving as our modern medicine continues to improve. No Supreme Court decision has ever provided a principled justification for the viability standard.

The Dobbs case hit at the heart of the precedents that were set in Roe and Casey, and in its litigation, Mississippi boldly asked the court to overturn those two cases.

How did the justices rule in the Dobbs case?

In the majority opinion, Justice Alito makes the case for why Roe and Casey must be overruled through a historical analysis of abortion laws as well as considering the issue of stare decisis. Through this analysis, the justices definitively state:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.

In considering the doctrine of stare decisis and overturning long-held precedent, Justice Alito wrote:

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences . . . It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’

The justices found that the decisions in Roe and Casey inflamed national tensions on this deeply moral issue, and that, ultimately, these decisions should be left to the states:

Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.

You can read more important quotes from the decision here.

Why does this ruling matter?

Today is the most significant pro-life moment in a generation. The Dobbs case enabled the court to overturn the “egregiously wrong” precedent set in Roe and Casey, which were decisions that were set “on a collision course with the Constitution from the day [they were] decided.” Because of today’s ruling, thousands of preborn babies in multiple states across the country will now possess their most fundamental right—the right to life.

In his concurring opinion, Justice Kavanaugh notes that “the Court’s decision today does not outlaw abortion throughout the United States.” Rather, each state is now free to set their own laws banning or allowing abortion. An estimated 26 states will soon implement complete bans on abortion. States including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming have trigger laws which will immediately or in the near future make abortion illegal in most cases. Other states have laws that will keep abortion legal and accessible.

This decision, rather than marking the end of the pro-life movement, will instead launch a new chapter as advocates turn their attention to protecting life in statehouses across the country and stopping the proliferation of chemical abortions. In addition, now that abortion becomes illegal in many states, many more vulnerable women and their preborn babies will need help and support. Christians must continue to stand in the gap and provide love, care, compassion, resources, and the good news of the gospel. Together, we must work toward a day when abortion is not only illegal but also unthinkable. Southern Baptists have long pleaded the case for America to recognize the inherent dignity of our most vulnerable neighbors, because Scripture tells us that every single life has been created in God’s image and therefore has innate worth and value.

Brent Leatherwood, ERLC’s acting president, calls the Supreme Court’s decision a “true turning point in the pro-life movement.” He goes on to say, “More lives are now protected today than yesterday. 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. Their commitment to uphold human dignity and justice has achieved the most significant victory in the history of the pro-life movement.” Watch Brent’s reaction to today’s ruling here.

How did the ERLC engage this case?

The ERLC was part of an amicus brief in this case, requesting the Supreme Court overturn the long line of abortion precedent beginning with Roe v. Wade and extended by Planned Parenthood v. Casey, both of which are decisions that have prevented states from prohibiting abortion. The ERLC’s brief asserted that “The Constitution does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.” 

The ERLC has also worked with pastors, ministry leaders and congregations to prepare them for this post-Roe moment and will continue to walk alongside churches and states as they work to continue to protect preborn babies and care for their moms and dads. 

What’s next?

“As this chapter comes to a close, we must understand this is not the end of our important work,” Leatherwood reminds us. “The issue of abortion has now been turned over to the states, many of which have either implemented or are considering some of the most abhorrently permissive pro-abortion proposals ever. A consistent, convictional pro-life witness is needed now more than ever in state legislatures and local communities. So 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.”

Christians will continue to have the opportunity to care for preborn babies, their mothers and fathers, and proclaim the good news of the gospel. May we redouble our resolve to be on the frontlines of caring for the most vulnerable among us.

Top Quotes: Supreme Court rules no constitutional right to abortion
By / Jun 24

In a monumental case that strikes down a constitutional basis for abortion, the Supreme Court ruled 5-4 in Dobbs v. Jackson on June 24 that the issue of abortion is returned to the states. Specifically, the court held that “Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The ERLC applauds today’s landmark ruling and is grateful for the long-awaited overturn to the court’s disastrous abortion precedent. This ruling is a culmination of nearly 50 years of focused work by the pro-life movement to overturn Roe v. Wade and protect the unborn.

By overturning Roe and Planned Parenthood v. Casey, the Dobbs ruling sends the question of abortion back to the states. This decision, rather than marking the end of the pro-life movement, will instead launch a new chapter as advocates turn their attention to protecting life in state capitals and working to build a true culture of life across the nation.

Justice Alito wrote the majority opinion joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justices Thomas and Kavanaugh wrote separate concurring opinions. Chief Justice Roberts wrote an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan authored the dissenting opinion together.

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 life and human dignity 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 

“The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis.” (1)

“The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right.” (2)

“The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for ‘liberty’—has long been controversial.” (2)

“Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’” (3)

“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.” (5)

“The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion.” (5)

“Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.” (6)

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.” (8)

Majority Opinion: Justice Alito

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the  Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” (5) 

“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. ” (5) 

“The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”(5) 

“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” (6)

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’” (6) 

“We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion…First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’ Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.” (8-9) 

“Guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” (14-15) 

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.” (15) 

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” (25)

“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.” (38)

“We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.” (39) 

“In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (43)  

“Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” (44) 

“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” (44)

“Under our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered…In Part II, we explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.” (45) 

“The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.” (46) 

“Casey’s ‘undue burden’ test has scored poorly on the workability scale. Problems begin with the very concept of an ‘undue burden.’ As Justice Scalia noted in his Casey partial dissent, determining whether a burden is ‘due’ or ‘undue’ is ‘inherently standardless.’” (57)

“The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata Principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.” (63)

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” (65)

“The dissent argues that we have ‘abandon[ed]’ stare decisis, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition.” (69) 

“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket.” (70)

“But we have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” (71)

Concurring Opinion: Justice Thomas

“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion…I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause.” (1)

“Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, ‘forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.’” (2)

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” (3)

“Apart from being a demonstrably incorrect reading of the Due Process Clause, the ‘legal fiction’ of substantive due process is ‘particularly dangerous.’” (4)

“That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.” (5)

“Now today, the Court rightly overrules Roe and Casey—two of this Court’s ‘most notoriously incorrect’ substantive due process decisions after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable.” (6-7)

“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.’ Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” (7)

Concurring Opinion: Justice Kavanaugh

“The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion.” (2)

“Some amicus briefs argue that the Court today should not only overrule Roe and return to a position of judicial neutrality on abortion, but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that position…The Constitution neither outlaws abortion nor legalizes abortion.” (3)

“After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.” (4)

“The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.” (5)

“Adherence to precedent is the norm, and stare decisis imposes a high bar before this Court may overrule a precedent. This Court’s history shows, however, that stare decisis is not absolute, and indeed cannot be absolute.” (6)

“Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents. See Obergefell v. Hodges (overruling Baker v. Nelson); Brown v. Board of Education (overruling Plessy v. Ferguson); West Coast Hotel Co. v. Parrish (overruling Adkins v. Children’s Hospital of D.C. and in effect Lochner v. New York).” (6)

“Casey’s stare decisis analysis rested in part on a predictive judgment about the future development of state laws and of the people’s views on the abortion issue. But that predictive judgment has not borne out. As the Court today explains, the experience over the last 30 years conflicts with Casey’s predictive judgment and therefore undermines Casey’s precedential force.” (9)

“I emphasize what the Court today states: Overruling Roe does not mean the overruling of [Griswold, Eisenstadt, Loving, or Obergefell], and does not threaten or cast doubt on those precedents.” (10)

“The Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral.” (12)

Opinion concurring on the judgment: Justice Roberts

“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense.” (1)

“But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” (2)

“The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.” (2)

“Neither Roe nor Casey made a persuasive or even colorable argument for why the time for terminating a pregnancy must extend to viability. The Court’s jurisprudence on this issue is a textbook illustration of the perils of deciding a question neither presented nor briefed.” (3)

“The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of ‘potential life.’ That changed with Gonzales v. Carhart. There, we recognized a broader array of interests, such as drawing ‘a bright line that clearly distinguishes abortion and infanticide,’ maintaining societal ethics, and preserving the integrity of the medical profession. The viability line has nothing to do with advancing such permissible goals.” (4)

“None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe.” (5).

“There is no rule that parties can confine this Court to disposing of their case on a particular ground—let alone when review was sought and granted on a different one. Our established practice is instead not to ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” (6)

“Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” (7)

“There is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.” (8)

“Whether a precedent should be overruled is a question ‘entirely within the discretion of the court.’ In my respectful view, the sound exercise of that discretion should have led the Court to resolve the case on the narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled basis” for this approach, but in fact it is firmly grounded in basic principles of stare decisis and judicial restraint.” (10)

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.” (11)

“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share.” (12)

Dissenting Opinion: Justices Breyer, Sotomayor, and Kagan

“For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be.” (1)

“So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health.” (2)

“Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” (2)

“Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.” (3)

“A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.” (3)

“The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits ‘each State’ to address abortion as it pleases.” (3)

“Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, ‘the views of [an individual State’s] citizens’ will not matter.” (3)

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.” (4)

“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.” (4)

“Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.” (4)

“The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty.” (5)

“Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.” (6)

“Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives.” (7)

“​​For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people.” (7)

“We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.” (7)

“The Court [in Roe] explained that a long line of precedents, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ protected individual decision making related to ‘marriage, procreation, contraception, family relationships, and child rearing and education.’” (7)

“In the 20 years between Roe and Casey, the Court expressly reaffirmed Roe on two occasions, and applied it on many more.” (8)

“The State could not ‘resolve’ the ‘moral and spiritual’ questions raised by abortion in ‘such a definitive way that a woman lacks all choice in the matter.’” (10)

“But what Roe and Casey also recognized—which today’s majority does not—is that a woman’s freedom and equality are likewise involved.” (12)

“‘There was a time,’ Casey explained, when the Constitution did not protect ‘men and women alike.’ But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it.” (15)

“It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” (18)

“According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma, not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. (27)”

“If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today’s opinion will be decided in the future. At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures.” (28–29)

“Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command.” (29)

“Today’s decision strips women of agency over what even the majority agrees is acontested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty.” (29-30)

“Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law giving women control over their reproductive lives.” (31)

“First, for all the reasons we have given, Roe and Casey were correct. In holding that a State could not ‘resolve’ the debate about abortion ‘in such a definitive way that a woman lacks all choice in the matter,’ the Court protected women’s liberty and women’s equality in a way comporting with our Fourteenth Amendment precedents.” (31)

“The standards Roe and Casey set out are perfectly workable. No changes in either law or fact have eroded the two decisions. And tens of millions of American women have relied, and continue to rely, on the right to choose.” (32)

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.” (33)

“Anyone concerned about workability should consider the majority’s substitute standard. The majority says a law regulating or banning abortion ‘must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.’ And the majority lists interests like ‘respect for and preservation of prenatal life,’ ‘protection of maternal health,’ elimination of certain ‘medical procedures,’ ‘mitigation of fetal pain,’ and others. This Court will surely face critical questions about how that test applies.” (35)

“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars.’” (37)

“The majority briefly invokes the current controversy over abortion. But it has to acknowledge that the same dispute has existed for decades: Conflict over abortion is not a change but a constant.” (37-38)

“In sum, Roe and Casey are inextricably interwoven with decades of precedent about the meaning of the Fourteenth Amendment. While the majority might wish it otherwise, Roe and Casey are the very opposite of ‘obsolete constitutional thinking.’” (38)

ERLC calls SCOTUS Dobbs ruling significant victory in the history of the pro-life movement
By / Jun 24

WASHINGTON, D.C., June 24, 2022— The Ethics & Religious Liberty Commission of the Southern Baptist Convention applauds the monumental Dobbs v. Jackson Women’s Health Organization Supreme Court’s ruling today and the long-awaited overturn to the disastrous abortion precedent set by the court. This ruling is a culmination of nearly 50 years of focused work by the pro-life movement to overturn Roe v. Wade and protect the unborn.

Brent Leatherwood, ERLC’s acting president, calls the Supreme Court’s decision a “true turning point in the pro-life movement.”

“More lives are now protected today than yesterday. 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. Their commitment to uphold human dignity and justice has achieved the most significant victory in the history of the pro-life movement. 

“As this chapter comes to a close, we must understand this is not the end of our important work. The issue of abortion has now been turned over to the states, many of which have either implemented or are considering some of the most abhorrently permissive pro-abortion proposals ever. A consistent, convictional pro-life witness is needed now more than ever in state legislatures and local communities. So 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.”

In taking Dobbs v. Jackson Women’s Health Organization, the Supreme Court agreed to revisit a previous decision “by reviewing a Mississippi law that would replace the ‘viability standard’ with a limit on abortions after 15 weeks of pregnancy.” 

Elizabeth Graham, ERLC’s vice president of life initiatives, responds to the court’s decision: 

“Today’s Supreme Court decision is a historic moment for the dignity of human life, and we celebrate that thousands of lives will now be saved. Yet, while we are grateful for any law or ruling that protects and defends life, the ultimate goal is for every person, born and preborn to be protected and seen with inherent dignity and value.  

“Laws are critical, but they cannot change the fact that tomorrow there will still be many women who will face an unplanned pregnancy—afraid, unprepared and unsure of what to do and where to turn. The Church has a significant opportunity to serve and support these women in crisis and their preborn children in their time of need.

“Only when we all see life holistically with inherent value will there be widespread change on this issue. Until then, our critical work and our ceaseless prayers continue.”

Chelsea Sobolik, ERLC’s director of public policy, comments on the court’s ruling:

“Today, the justices took this once-in-a-generation opportunity to rightly recognize and protect the inherent dignity and worth of the preborn. By doing so, the lives of thousands of our littlest neighbors will be saved.

“For too long, the Roe and Casey decisions have allowed our nation to turn a blind eye to the plight of those who have no voice— – to view these lives as a burden instead of a blessing. While this rulingl is a significant step toward establishing a true culture of life, the issue of abortion will now be sent back to the states. We must continue to use our time, talent and treasure to protect the preborn,  care for their mothers, and advocate for state laws that protect them both.”

The ERLC and other pro-life organizations filed an amicus brief in the Dobbs case. Additionally, the ERLC created an explainer when the case was granted a hearing before the Court.

The Dobbs ruling sends the question of abortion back to the states, where the pro-life movement will look different in all 50 states. The ERLC will continue to be on the frontlines of caring for vulnerable women and children and working towards a day when a true culture of life is established across America.

Top Quotes: Supreme Court upholds religious freedom for Maine families
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)

In 6-3 Decision, Supreme Court rules Maine can’t discriminate against religious schools, strengthening religious liberty
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.”

Supreme Court upholds religious freedom for Maine families
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.