This is a hard week to post about.  There were three opinion days this week.  And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.

Tuesday started off the week with Carson vs. Makin, the Maine school voucher case.   Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion.  Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions.  Traditionally, the big fights have been in the “no penalty” prong.

On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest.  And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme.  The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws.  And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function. Continue Reading...