2nd place — 2024 FFRF Law Student Essay Contest: Jake Goodwin
By Jake Goodwin
When considering the Supreme Court’s disparate treatment of the Establishment and the Free Exercise Clauses of the First Amendment, there is a trap one can fall into. The trap is reading the court’s radical decisions and using its analysis to draft some solution or amendment that negates these decisions. This is a trap because centering the court’s opinions concedes too much to the Christian extremist majority that currently controls the court. They are not engaging in any reasonable analysis in their Free Exercise opinions.
The likes of Justice Samuel Alito, who, at the beginning of the year, bemoaned the treatment of “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct,” and Justice Clarence Thomas, who has argued for over a decade that the Establishment Clause doesn’t apply to states at all, are not engaging in good faith constitutional scrutiny. The current cabal of justices is so dishonest in their analysis that in 2019 they argued that a 40-foot cross on government property did not violate the Establishment Clause based on the absurd reasoning that the cross was not actually a religious icon.
It is not as if these justices have found some unique peculiarity in the Constitution — their leaps of logic are a farce and to draft a constitutional amendment in response to them gives them far more legitimacy than they deserve.
Luckily, there is another source of jurisprudence which contemplates these same decisions much more honestly: the dissents. Within the dissents, the balance between the Free Exercise and Establishment Clause is still alive and well, and they acknowledge the majority’s work to establish Free Exercise supremacy.
For instance, in 2022, Justice Sonia Sotomayor noted in her dissent to Kennedy v. Bremerton School District that the conservative majority on the court was increasingly “giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.” So, instead of drafting an amendment to counter the most extreme majority opinions, a 28th Amendment should seek to restore balance between the Free Exercise and Establishment Clauses by bolstering the arguments of the minority opinions that have been advocating for a restored Establishment Clause.
When consulting the dissents, three main themes or concerns connect them all.
The first is that when balancing the two clauses, it is of the utmost importance to consider the broader context of the practice or symbol. This theme can be seen in Sotomayor’s dissent in Kennedy v. Bremerton, where she criticizes the court for “drawing a bright line between” a high school coach’s years of leading his students in prayers and focuses on his three most recent prayers which did not include his students; as well as, in Justice Ruth Bader Ginsburg’s dissent in American Legion v. American Humanist Association, where she stresses that using a cross as a war memorial “does not transform it into a secular symbol,” or remove its sectarian context.
The second theme is that religion does not turn a business’ discriminatory acts into free exercise. This second theme is most clearly articulated in Sotomayor’s dissent in 303 Creative LLC v. Elenis, where she maintains that “the act of discrimination has never constituted protected expression under the First Amendment.”
The third theme is that the government must not be mandated to support religious organizations. This principle is plainly articulated in Justice Stephen Breyer’s dissent in Carson v. Makin, which held that when balancing the Establishment and Free Exercise Clauses, courts “need not, and should not, answer with ‘must,’” when “may” would suffice. Breyer worries about the dangerous erosion of the Establishment Clause the majority creates by transforming the precedent that states may provide support to religious institutions into a ruling that states must not withhold support for a religious institution to use for religious purposes. He distinguishes between denying support for organizations with a religious status and denying support for organizations which will use the support for sectarian ends. Sotomayor takes this a step further, arguing that a state need not provide support to institutions because of either its religious use or its status.
Considering these dissents and the themes that connect them, I propose the following constitutional amendment: Amendment XXVIII, Whenever a concern arises regarding the first clause of Amendment I, the religious practices, symbols or organizations in question must be considered in their broadest context, with specific attention to any sectarian connotations. The first clause of Amendment I permits and protects from requirement the federal and state governments the ability to uniformly deny support, monetary or otherwise, to organizations because of their characters as religious organizations, and forbids the federal and state governments from providing support, monetary or otherwise, to an organization that serves sectarian purposes. The protections of the second clause of Amendment I shall not be extended to instances of discrimination regarding race, religion, national origin, sexual orientation, gender identity, disability, or marital status by either the federal or state governments or by businesses open to the public. These entities must provide their services, no matter how expressive, to all members of the public equally.
This 28th Amendment is aptly composed of three sentences, each reflecting a core theme from the dissents. The first sentence is straightforward, and prescribes that questions regarding the Establishment Clause be examined with a broad context. It also does not explicitly refer to the courts, thus providing guidance to other governing bodies. The second sentence is more complex and can be broken into two parts; the first essentially allows the government to withhold support from organizations because of their religious status; the second essentially forbids the government from supporting religious causes.
These two types of religious organizations are treated differently because the goal of this amendment is to restore balance between the two clauses, not trade Free Exercise supremacy for Establishment supremacy. And, in order to preserve this balance, there must be room for flexibility. Thus, rather than remove the flexibility altogether, this second sentence merely seeks to define the limits of this flexibility. The third sentence straightforwardly clarifies that the Free Exercise Clause cannot be used to sanction discrimination.
Applying this 28th Amendment to a recent case, we can see how, if at all, it would alter the outcome. 303 Creative v. Elenis, a 2023 case in which the court found that a company is allowed to refuse services to homosexuals on account of their deeply held religious convictions, entirely relies on Lorie Smith’s free speech/free exercise protections. Thus, one would think the third sentence of the amendment, which precludes these protections from extending to businesses engaging in discrimination, would radically alter the court’s decision. However, that may not be the case. The majority would likely maintain its claim that there is nothing discriminatory about Smith’s actions, as she will still take LGTBQ+ clients as long as they design a website for a wedding between a man and a woman. Of course, one could point out that these services are inherently not equal and violate the last clause of the proposed amendment, or that a business cannot simply define its expressive conduct as not including a protected group to get around the 28th Amendment.
In fact, someone essentially already did, that being Sotomayor in her dissent. Practically, nothing would change in the 303 Creative decision with inclusion of this 28th Amendment. Maybe, it is a drafting issue. Maybe, the amendment should specifically say “Businesses who make wedding websites must do so for both same-sex and opposite-sex weddings.” Maybe. However, before it comes to passing specific amendments to line by line repudiate rogue Supreme Court decisions, I propose one more sentence to this amendment:
“All justices of the Supreme Court at the time of the passage of this amendment shall be removed from their positions and replaced with nine new justices.”
A drastic measure to be sure, however, if balance is to be restored between the Establishment and Free Exercise clauses, it is a desperately needed one. The trap that Christian extremists have crafted is a snare filled with derivative logic and, at the center, their targets are the civic and religious freedoms our country was founded on.
As articulated in the beginning of this essay, the current Supreme Court majority are the ones responsible for imbalance in the first place, and they will not let precedent, the Constitution, or even the meaning of words get in the way of their cause. In their court, denying services to a protected group isn’t discrimination, a prayer in front of an audience is private, and the cross isn’t Christian. For balance to truly be achieved, the court must undergo a cultural reset. Of course, this includes the minority, the dissenters cited throughout this very essay, and as disappointing or unfair as that may be, this is not a moment that calls for half-measures. A restorative amendment cannot be one that leaves the court in the hands of any “victors.”
Jake Goodwin is a second-year law student at the University of Cincinnati. Jake serves on the executive board for the University of Cincinnati’s International Law Society, edits for the Human Rights Quarterly, is an Urban-Morgan Institute of Human Rights fellow, and works at the law school’s Legal Access Clinic.
