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This is the third part in a series for SCOTUSblog recounting two decades of constitutional change through the five editions of our casebook, the first published in 2008 and the latest to be published this December.
Twenty years ago, the Supreme Court strictly enforced the separation of church and state, deferentially reviewed restrictions on free exercise rights, and played no role in enforcing the Second Amendment. This was the state of the law when one of us began law school in the fall of 2006.
What a difference two decades has made for the First and Second Amendments.
Expanding the free exercise of religion
In 2006, shortly after the Roberts court’s inception, the modern concept of “religious liberty” was nascent. The conservative justices on the court, led by Justice Antonin Scalia, were skeptical of religious litigants who were seeking exemptions from neutral and generally applicable laws; that is, laws that did not target a particular religion. Nor did the free exercise of religion doctrine seem particularly controversial. In the first edition of our casebook, the entire chapter stretched only 20 pages. We included, for example, the 1878 case of Reynolds v. United States, which distinguished belief from conduct. There, the Supreme Court had protected a religious belief in polygamy but allowed the prosecution of a person who engaged in polygamy.
For modern cases, we began with Sherbert v. Verner. This Warren court ruling held that even neutral laws burdening religion would be reviewed under strict scrutiny; that is, the government needed to make a strong showing that impositions on religious practices were necessary. But Scalia’s decision in Employment Division v. Smith arguably rolled back Sherbert and reviewed such laws only with rational basis scrutiny; that is, any regulations on religion which were “reasonable” would hold. For the remainder of the Rehnquist court, Smith seemed set in stone, with no prospects of reversal. Church of Lukumi Babalu Aye v. City of Hialeah provided an exception to the Smith rule where a particular faith is targeted, but that was generally the extent of it. In the first edition of our casebook, the scope of free exercise doctrine thus seemed both settled and limited.
During the early Roberts court, government policies that reflected a growing societal secularism began to clash with not only minority faiths, like Jehovah’s Witnesses and Seventh-day Adventists, but also mainstream Catholic and Protestant beliefs. Slowly but surely, protections for religious liberty expanded. The second edition of our casebook introduced the so-called ministerial exception with Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. This doctrine exempted some religious employers from discrimination laws. The third edition, in 2017, previewed future clashes over funding of religious schools in Trinity Lutheran Church v. Comer. This narrow case held that the state could not deny funding for a playground at a church because of the church’s religious status. We also included Burwell v. Hobby Lobby Stores, Inc., which granted an exemption from the Obamacare contraceptive mandate to a religious corporation. By the fourth edition in 2021, the court's trajectory on taxpayer funding for religious schools seemed clearer with Espinoza v. Montana Department of Revenue. This ruling held that the state could not deny educational tax credits for parents to use at a religious school. At this point, the free exercise clause chapter stretched about 40 pages – about double what it was only a few editions earlier.
In recent years, the court has become even more protective of religious liberty. We now begin with People v. Philips, an 1813 New York case that exempted a priest from testifying about incriminating information he learned during a confession. This interesting case stands in sharp tension with Smith, which refused a religious exemption from an otherwise neutral law, and reflects where the current court has been heading.
We also added the district court precursor to the landmark Supreme Court case of Barnette v. West Virginia State Board of Education. Before the Supreme Court, Justice Robert Jackson’s canonical decision ruled that requiring students to salute the flag was a form of compelled speech that violated the free speech clause of the First Amendment. But the lower court actually ruled that the flag law burdened Jehovah’s Witness students’ free exercise rights. After Sherbert, we added Wisconsin v. Yoder, which exempted Amish children from compulsory education laws. After Smith, Yoder seemed like a dead letter, as Scalia’s majority opinion effectively limited Yoder to the unique Amish context. But a new case, Mahmoud v. Taylor, reinvigorated Yoder, holding that the decision applies more broadly to grant opt-outs to parents who object to instruction that interferes with the right to direct the religious upbringing of their children.
De-separating the establishment clause
1971’s Lemon v. Kurtzman prohibited entanglement between church and state. In 2008, the Lemon test was the law of the land, except when it wasn’t. Two cases in our book did not invoke the test: Marsh v. Chambers, which upheld a chaplain prayer before the meeting of the Nebraska legislature, and Lee v. Weisman, which halted a rabbi’s benediction before a middle school graduation ceremony. But the leading case in 2006, McCreary County, Kentucky v. A.C.L.U. of Kentucky, expressly applied Lemon to block a Ten Commandments display in a courthouse. Then again, the companion case, Van Orden v. Perry, upheld a Ten Commandments stone statue on the grounds of the Texas Capitol. The latter ruling stood as something of an outlier, perhaps because Justice Stephen Breyer thought it was imprudent for the court to mandate the destruction of an old monument. In any event, all of these precedents seemed settled.
By the third edition in 2017, however, there was change in the air. Marsh v. Chambers was augmented by Town of Greece v. Galloway, which followed a “history and tradition” approach to uphold a legislative prayer. And in the fourth edition, American Legion v. American Humanist Association upheld a public display of a Latin Cross, which served as a World War I memorial. This precedent suggested Lemon was on shaky ground. But all of the above cases remained good law.
Then, in 2022, came Kennedy v. Bremerton School District, which upheld the right of a football coach to pray on a 50-yard line after games. This precedent deemed Lemon to be, if not reversed, then “abandoned.” The first section of our textbook now includes three cases in which the Supreme Court purported to separate church and state: Everson v. Board of Education of Ewing Township, Engel v. Vitale, and Lemon v. Kurtzman. We previously did not include Everson and Engel, which concerned transportation to religious schools and school prayer, but thought it useful to show how the now-defunct “separationist” Lemon came to be.
We also focus on five cases from the Roberts court: Town of Greece v. Galloway and Kennedy v. Bremerton School District, discussed above; Our Lady of Guadalupe School v. Morrissey-Berru, which expanded the ministerial exception; Carson v. Makin, which barred the government from denying tax credits to religious schools; and Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, which prevented the government from denying a tax exemption to a religious nonprofit. These new cases would have been unthinkable in 2008, a time when the Lemon test reigned, but now define the contours of the establishment clause.
The not-so-stalled Second Amendment
The court’s recent understanding of the Second Amendment has been transformative as well. The court heard oral argument in District of Columbia v. Heller in March 2008, the same month our book’s first edition was published. But Scalia’s majority opinion was still three months away. The first edition could only include a short excerpt from the Supreme Court’s majority opinion in United States v. Miller from 1939, which upheld a conviction for carrying a sawed-off shotgun. The entire chapter stretched about five pages. At the time, the Second Amendment – much less Second Amendment doctrine – was not yet a thing.
The Second Amendment chapter would begin to take shape by the time of our second edition in 2013. The excerpts of District of Columbia v. Heller and McDonald v. City of Chicago each stretched about 20 pages. The former case established that the Second Amendment guaranteed an individual right to keep and bear arms, and the latter case incorporated that right to the states. We also included two circuit court decisions that began the process of developing doctrines to implement the Second Amendment. Blue states legislated as if the holdings of Heller and McDonald were limited to the possession of guns inside the home. For whatever reason, as circuit courts upheld virtually every novel gun measure, the Supreme Court went for more than a decade without deciding a major gun case. Indeed, the leading support for gun rights from the Supreme Court came from dissents from denials of certiorari, which condemned treating the right to arms as a “second class” constitutional right.
The third edition, published in 2017, maintained Heller and McDonald, but added eight lower court decisions concerning gun ranges, gun stores, safe storage laws, “assault weapons,” and the right to carry.
Once again, our latest edition shows a continued shift in constitutional law, even if doctrinal certainty remains lacking. In their place, four new Supreme Court decisions now have full coverage. The court decided two cases about where the right to bear arms applies. New York State Rifle & Pistol Association, Inc. v. Bruen held that the Second Amendment protects a right to carry arms outside the home. Wolford v. Lopez invalidated a Hawaii law that presumptively ban carrying firearms in all places to the public. The court also decided two other cases about who can bear arms: United States v. Rahimi ruled a person subject to a domestic violence restraining order could not bear arms, while United States v. Hemani held that a user of marijuana could bear arms.
Alas, this developing jurisprudence is proving difficult to apply and even understand. In 2008, we thought Heller could bring to the right to keep and bear arms what First Amendment decisions in the 20th century brought to the freedom of speech. Any such movement has developed slowly. But more recently appointed justices appear to have broken the logjam. This term, the court will decide whether the Second Amendment guarantees the right to possess AR-15 and similar semi-automatic rifles, which (hopefully) will address the important but neglected question of which arms are protected by the Constitution.
But the bottom line is that, even if the right to possess a firearm has expanded dramatically, the contours of what that means is strikingly undeveloped.
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The next installment in this series considers the changes to Congress’ enumerated powers, the president’s executive powers, and the separation of powers between those branches.
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