The Roberts Court Has Contracted, Not Expanded, Religious Rights

Linda Greenhouse has a column purporting to reflect on the Roberts Court’s first nine years that doubles as an occasion to offer the hope that Chief Justice Roberts will “moderate” in the next decade–a hope then despaired of at the end of the column.

She also says this:

It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.

But on the issue of religious interests, Greenhouse is, I believe, mistaken, at least insofar as constitutional law is concerned. As I show in this article, the defining mark of the Roberts Court in the area of religious rights has been contraction, not expansion. One of the very cases cited by Greenhouse herself involving the religion clauses–Town of Greece v. Galloway–is much more plausibly conceived as a contraction of the Establishment Clause, not an expansion. The Court’s exercise of judicial review, the range of views among the Justices about religious rights, and the substance of the Clauses themselves–all of these, contra Greenhouse, have contracted over the last decade.


The editorial page of the New York Times has come out in favor of Judge Richard Stearns’s decision in ACLU v. Sebelius.  The editorial is entirely bereft of legal analysis, other than offering the obviously heartfelt but otherwise unilluminating view that the opinion  is “sound.”  The editorial concludes with this:

The sound ruling could have implications for the faith-based initiative begun by President George W. Bush and continued under President Obama by calling into question the dubious notion of giving churches and other groups wide latitude to use public money for their religion-based social service programs.

I am not sure whether this was intended seriously or not, but on the assumption that it was, I’m afraid it is sorely, wildly mistaken — indeed, positively “dubious” as a legal matter.  On no plausible understanding of the Establishment Clause could the activity of distributing public money on a neutral basis to organizations which perform secular functions with religious motivations violate the Establishment Clause, at least not as the Clause has been interpreted by the Supreme Court, or as a matter of historical practice, or as a matter of tradition, or by any other constitutional methodology that has any serious adherents.  The claim is sufficiently extraordinary to motivate me to create a special new tag, “The New York Times on the Religion Clauses.”

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