Home August-September 2022 Recent Supreme Court decisions reshape constitutional rights

Recent Supreme Court decisions reshape constitutional rights

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By Eva Wood and David Aron
In its most recent term, the U.S. Supreme Court issued a number of decisions that overturned longstanding precedent on a host of hot-button social issues, including abortion, vouchers, religion in schools and gun control regulations. The following is a summary of three decisions that have the greatest potential impact on the rights of Minnesotans and Minnesota educators.

I. Vouchers for religious schools: Carson v. Makin

The decision

The Supreme Court considered a First Amendment challenge to a Maine law that provides private school tuition assistance to families in school districts in rural parts of the state that lack a public secondary school as long as the private school receiving the assistance is nonsectarian, or non-religious. Maine added the nonsectarian requirement to its law in 1981 out of concern that providing direct aid to religious schools would violate the Establishment Clause of the First Amendment. The lower courts agreed with the state that this restriction was constitutional because it prohibited public funds from being used for religious purposes, consistent with the Establishment Clause.

Writing for the court’s 6-3 majority, Chief Justice John Roberts reversed the lower courts and held that the Maine law violated the Free Exercise Clause by allowing tuition assistance for private nonsectarian schools while prohibiting it from going to religious ones. The court held that Maine is not obligated to fund religious schools, and that it could instead provide public secondary school options to all students in the state. However, since the state has chosen to allow tuition assistance to nonsectarian private schools, barring religious schools from receiving the same public funds amounted to unconstitutional discrimination against religion.

The dissent

Justice Stephen Breyer dissented, along with Justices Elena Kagan and Sonia Sotomayor. In the dissent’s view, the Maine law restricts funds from religious schools not due to their religious character, but rather due to their use for religious instruction, a distinction the Supreme Court had previously recognized as constitutional. It cautions that “state funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent.”

Justice Breyer’s dissent raises alarm about the implications of the Carson decision for other state laws prohibiting government funding of religious instruction. He asks whether the decision “mean[s] that a public school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

The dissent would have allowed the Maine law to stand because it “supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife.” Justice Breyer points out that the religious schools themselves expressed concern that receiving public funds might require them to alter their educational programs. Finally, the dissent argues that the court’s decision marks a concerning shift away from government neutrality toward religion that will undermine religious pluralism.

What it means for Minnesota educators

Like the court’s decision in Espinoza v. Montana Department of Treasury (2020), this decision moves the U.S. closer to a legal regime where any restriction on government funding for religious education is unconstitutional. This would be a dramatic shift in the Supreme Court’s interpretation of the First Amendment that would negatively impact the resources available to public schools. For now, however, the court insists that public funding for private schools is not required unless the district makes the same funding available to private nonsectarian religious schools.

Because Minnesota does not currently allow vouchers for any private school tuition, this decision would not immediately require the state to fund private religious schools. That would likely change if Minnesota fails to retain a pro-public education majority in the Legislature or the Governor’s office, underscoring the urgency of this fall’s elections.

Private school vouchers have long been a priority for many Minnesota Republicans, even though private schools are not required to accept all students and private religious schools are exempt from certain state and federal anti-discrimination laws. If Minnesota were to enact vouchers, the Carson decision would likely require that any funds be made available to religious private schools on the same basis as non-religious ones.

II. Prayer at public school events: Kennedy v. Bremerton School District

The decision

In another notable decision involving religion and public schools, the court held that the First Amendment protects the right of public employees to engage in “personal religious observance” at a school-sponsored event without retaliation. Joseph Kennedy was an assistant coach in the Bremerton School District whose practice of praying on the 50-yard line of the football field after games, sometimes with student-athletes, generated concern from district officials that his conduct would put the district in violation of the Establishment Clause of the First Amendment. After Kennedy continued to pray on the field despite requests by the district to do so in a less public space, the school district placed him on administrative leave and recommended against the renewal of his coaching contract, at which point he sued the district.

Writing for the 6-3 majority, Justice Neil Gorsuch found that the school district burdened Kennedy’s exercise of his religion in a manner that was not “neutral” or “generally applicable,” since the district’s actions were targeted at Kennedy specifically because of his religious activity. The court rejected the defense for the conduct offered by the school district and accepted by the lower courts—that allowing Kennedy to pray on the football field after the game would amount to a government endorsement of religion under the court’s decision in Lemon v. Kurtzman (1971).

The majority criticizes the “Lemon test” as flawed, and asserts that the proper test for determining when religious conduct by school employees or officials violates the Establishment Clause is whether it forces or persuades students to participate in religious activity. Based on its insistence that Kennedy’s conduct was not coercive and did not interfere with his coaching duties, the court held that it was protected by the First Amendment.

The dissent

Writing for the court’s three liberal justices in dissent, Justice Sotomayor criticized Gorsuch’s characterizations of the prayer as private and non-coercive, despite significant factual evidence to the contrary. The dissent notes: “The record reveals that Kennedy had a long-standing 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. The court ignores this history. The court also ignores the severe disruption to school events caused by Kennedy’s conduct.”

Justice Sotomayor also emphasizes the court’s departure from longstanding precedent, noting that the court “has consistently recognized that school officials leading prayer is constitutionally impermissible.” The majority ruling, she writes, “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.”

What it means for Minnesota educators

As a result of this decision, policies and practices by public schools restricting religious expression by employees may be more open to First Amendment challenges than previously. However, employees should not interpret the court’s decision as a license to pray with students at any point in their duty day, especially during instructional time, given the court’s insistence that Kennedy’s prayer was private and at a time when he had no other work obligations.

While this decision does not explicitly overrule Lee v. Weisman (1992), which held that school officials violated the First Amendment by leading students in prayer during a graduation ceremony, it will likely generate more disputes about the line between protected and unprotected religious activity by public employees. Prior to this decision, most courts would have found that schools need not allow Kennedy’s conduct at a school-sponsored event, but school districts and courts may need to give this type of activity greater latitude if the employee is doing so in their individual capacity and can demonstrate that it was not coercive to students.

III. Abortion: Dobbs v. Jackson Women’s Health

The decision

In a decision overturning nearly 50 years of legal precedent, the U.S. Supreme Court held that the U.S. Constitution does not confer a right to abortion. The court considered a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Lower courts had blocked the law from taking effect based on the court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Those decisions prohibited states from banning abortion before fetal viability, generally within the first 24 weeks, on the basis that a woman’s choice of whether or not to terminate a pregnancy falls within the right of privacy protected by the Fourteenth Amendment’s Due Process Clause.

The court ruled 6–3 to reverse the lower court rulings; a smaller majority of five justices joined the opinion overturning Roe and Casey. The majority decision was written by Justice Samuel Alito and joined by Justices Clarence Thomas, Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all of whom were nominated by Republican presidents. Chief Justice Roberts agreed with the judgment upholding the validity Mississippi law even though it conflicted with Roe and Casey, but he would not have overruled Roe or Casey in their entirety.

The majority criticizes both the historical evidence relied on by the court in Roe as well as its legal reasoning. The court asserted that the only way to analyze whether the Constitution protects a right not explicitly mentioned is to determine whether the asserted right is “deeply rooted in the nation’s history and tradition.” The court cited the existence of criminal penalties for abortion at the time of ratification to conclude that the Constitution does not protect a right to abortion, holding that the authority to regulate it lies with “the people and their elected representatives.”

The dissent

Justices Breyer, Kagan and Sotomayor jointly wrote the dissent. In the introductory statement, they warn, “the right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The three dissenting justices also argue the precedent was struck down not because of new scientific developments or societal changes, but due to changes in the makeup of the Supreme Court itself. They point out the rarity of the Supreme Court removing constitutional rights instead of expanding them, and note with sadness that “young women will come of age with fewer rights than their mothers and grandmothers had.”

What it means for Minnesota educators

In the immediate future, abortion will remain legal in Minnesota based on a 1995 ruling by the Minnesota Supreme Court that abortion is protected under the Minnesota Constitution. In July 2022, a state district court found that a number of Minnesota restrictions on abortions, including a 24-hour waiting period, two-parent notification for minors, and a requirement that only physicians may perform abortions, violated the Minnesota Constitution and were invalid. Nevertheless, the court’s decision in Dobbs has already revived abortion bans in many states, including all of those neighboring Minnesota except Iowa, which is likely to reinstate a ban that had previously been declared unconstitutional. Dobbs also opens the door to a federal ban on abortion.

In addition, Dobbs raises questions about whether the current Supreme Court majority will continue to recognize a constitutional right to same-sex marriage, interracial marriage and contraception, all of which are based on a long-recognized right to privacy within the Fourteenth Amendment.

Finally, future decisions interpreting the Constitution as protecting only the legal rights existing at the time of ratification—the approach articulated by the majority—could be harmful to women, minorities and other marginalized groups, who were not viewed as full citizens and did not enjoy anything close to legal equality until much more recently in our history. For those concerned about preserving these rights, electing state legislators and constitutional officers who will protect and defend them became even more critical.

Wood is a staff attorney at Education Minnesota and Aron is general counsel.

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