REFLECTIONS ON THE CHURCH/STATE PUZZLE.

• Author: Lipez, Kermit V.

1. INTRODUCTION

   In the past five years, the Supreme Court has decided four important cases involving the Religion Clauses of the First Amendment: Town of Greece v. Galloway, Trinity Lutheran Church v. Comer, Masterpiece Cakeshop v. Colorado Civil Rights Commission; and American Legion v. American Humanist Association. (4) By analyzing and reacting to these cases, I hope to offer a perspective on pieces of the church/state puzzle that will help judges and others think more critically about future developments in this consequential area of the law. (5)

   Masterpiece Cakeshop and Trinity Lutheran are primarily Free Exercise Clause cases. Town of Greece and American Legion are Establishment Clause cases. Taken together, these cases reflect a weakening of the Establishment Clause in favor of a stronger free exercise right--a trend that will likely increase the presence of majority religions in the public square, to the possible detriment of minority religions. As I explain, this trend is most notable in the continuing shift in Establishment Clause jurisprudence away from the three-part test articulated in Lemon v. Kurtzman, (6) with its focus on the present effects of statutes or government practices with religious implications, toward a "historically rooted practice" test. Unlike the Lemon test, the "historically rooted practice" test, as articulated in Town of Greece and invoked in American Legion, fails to account for the religious pluralism of today's society. I therefore counsel caution in eliminating Lemon from our Establishment Clause jurisprudence. I also warn against conflating a measured separation of church and state in judicial decisions--still central to the neutrality principle of the Religion Clauses--with hostility to religion.

   The Religion Clauses of the First Amendment are familiar: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (7) These Clauses frame the debate about the proper relationship between the government and religion. Although the First Amendment explicitly limits the power of the federal government--"Congress shall make no law"--the Supreme Court ruled in a pair of cases in the 1940s, Cantwell v. Connecticut (8) and Everson v. Board of Education, (9) that those limits also apply to state governments through the Fourteenth Amendment.

   Given the generality of the Religion Clauses, there is no consensus on the breadth of their application. But the ongoing debate reflects two competing visions on the Supreme Court about the proper relationship between the government and religion under our Constitution: the "accommodation vision" and the "separation vision." (10) Painting in broad strokes, the accommodation vision requires government to make ample room for religion in public life, or, to use a favorite phrase of the accommodation advocates, in the public square. This vision favors a narrow application of the Establishment Clause and an expansive application of the Free Exercise Clause. The separation vision requires government to keep a safe distance from religion. It is wary of religion's presence in the public square, favoring an expansive application of the Establishment Clause and a narrow application of the Free Exercise Clause. The separate opinions of the justices in Masterpiece Cakeshop, Trinity Lutheran, Town of Greece, and American Legion reflect these competing visions.

2. MASTERPIECE CAKESHOP: THE FIGHT FOR RELIGIOUS EXCEPTIONS TO PUBLIC ACCOMMODATIONS LAWS

   Some accommodationists seek to expand the Free Exercise Clause by requiring religious exceptions to laws that prohibit discrimination in places of public accommodation. In Masterpiece Cakeshop, the Supreme Court considered the demand of a baker for a religious exemption from a law prohibiting discrimination against gay couples.

   1. Precedent: Employment Division v. Smith

      In a precedent central to Masterpiece Cakeshop, Employment Division v. Smith, the Court had to decide if a state, consistent with the Free Exercise Clause, could deny unemployment benefits to persons dismissed from their jobs for violating state criminal laws by using peyote in their religious worship. (12) Prior to Smith, the Court had used the balancing test of Sherbert v. Verner (13) to evaluate the kind of free exercise claim raised in Smith. Under that test, "governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest." (14) To the surprise and dismay of many scholars and advocates of the free exercise rights of minorities, (15) the Court, in an opinion by Justice Scalia, abandoned the Sherbert balancing test in favor of a sweeping rule to justify the denial of unemployment benefits:

      [T]he right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." (16) Justice Scalia insisted that this rule was not new. (17) The only precedent to the contrary, he said, involved "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press." (18) Smith was not such a hybrid case. He also said that a ruling in Smith's favor under the Sherbert test "would open the prospect of constitutionally required religious exceptions from civic obligations of almost every conceivable kind," (19) and would require judges to "weigh the social importance of all laws against the centrality of all religious beliefs," (20) an exercise better left to the legislature in a democratic society. In a concurring opinion, Justice O'Connor, who would have ruled for Oregon on the basis of the Sherbert balancing test, lamented its abandonment: "The compelling interest test [of Sherbert] reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society." (21)

      Justice O'Connor's critique became a rallying cry for critics of the Smith decision, who saw its non-accommodation approach to claims for religious exemptions from general laws as a threat to religious freedom and diversity. (22) In 1993, by overwhelming majorities in both Houses, Congress passed the Religious Freedom Restoration Act to restore the applicability of the Sherbert balancing test to all federal and state laws. (23) In a 1997 decision, City of Boerne v. Flores, (24) the Supreme Court limited the applicability of the Act to federal law, concluding that Congress did not have the power pursuant to the enforcement provision of the Fourteenth Amendment to apply that law to the states. (25) As a result, critics of the Smith decision have been hoping for years to find a case that would prompt the Supreme Court to overturn Smith and return to the Sherbert balancing test for free exercise challenges to state laws of general applicability, such as anti-discrimination laws.

   2. Masterpiece Cakeshop 's Sidestep

      Masterpiece Cakeshop had the potential to be that case. In 2012, a same-sex couple visited the Masterpiece Cakeshop, a bakery in Colorado, to order a wedding cake. (2) The bakery's owner, Jack Phillips, told the couple that he would not create such a cake because of his religious opposition to same-sex marriage. They filed a complaint with the Colorado Civil Rights Commission claiming a violation of Colorado's anti-discrimination law, which prohibited a place of public accommodation from refusing to provide goods or services on the basis of certain protected characteristics, including sexual orientation. The parties agreed that the bakery was a place of public accommodation, and that Phillips's refusal to sell the couple a wedding cake violated Colorado's anti-discrimination law. (28)

      Phillips argued that applying the anti-discrimination law to his refusal violated his First Amendment rights to the free exercise of religion and freedom of speech because requiring him either to bake the cake or face civil fines impermissibly forced him both to participate in an event (a same-sex wedding) prohibited by his religion and express a viewpoint that he abhorred. The Colorado Civil Rights Commission rejected those claims, and so did the Colorado courts. (29) The United States Supreme Court then agreed to hear the case.

      This case was appropriately portrayed as a big deal. Twenty-one states and the District of Columbia have laws prohibiting discrimination in public accommodations on the basis of sexual orientation, (30) and the Supreme Court had never recognized a religious exception to anti-discrimination laws. Indeed, in the 1968 case of Newman v. Piggie Park Enterprises, Inc., (31) the owner of a South Carolina barbecue chain claimed that a federal public accommodations law requiring him to serve blacks infringed on his freedom of religion because of his religious objections to integration. The Supreme Court rejected that claim as "patently frivolous." (32) And then there was Justice Scalia's pronouncement in Smith that the Free Exercise Clause does not permit an individual to disobey a law of general applicability, like Colorado's anti-discrimination law, on religious grounds. If the Supreme Court recognized the religious exception claim of the Masterpiece baker, it would have to overrule Smith or somehow find it inapplicable. Going forward, any such decision would have enormous implications for the enforcement of anti-discrimination laws throughout the country.

      To the relief of many, the Supreme Court avoided these momentous issues. Justice Kennedy, writing for the seven-member majority, ruled in favor of the baker because he found that Colorado's anti-discrimination law had not been neutrally applied to baker Phillips. (33) Some statements made by the Colorado Civil Rights Commission showed "clear and impermissible hostility toward the sincere religious beliefs that...