From majority power to minority rights


A movement for religious rights is transforming the place of religion in American public life.

From the 1960s until very recently, the Liberals successfully argued in the Supreme Court that the tyranny of the majority cannot define the lives and experiences of secular citizens.

For decades, the court has consistently ruled that laws imposed by local majorities requiring school prayer or religious demonstrations on government property violated the Establishment Clause of the First Amendment, which has been interpreted to mean that ‘The government is prohibited from supporting one religion or favoring one religion over another. .

These decisions meant that the rights of the non-Christian minority defined the public place of religion in the United States.

But over the past decade, the shift in power between the religious and secular sides of American culture has created a new sense of self among Christians as a distinct minority group. More importantly for court proceedings, this has led to a new strategy: They argue that they are now the minority group whose rights require protection under the Constitution.

Rise of the Christian minority

Recent Supreme Court decisions show that judges tend to agree.

Three major religious cases in 2017, 2018 and 2019 pitted a religious claim against a secular claim – a church against the state government, a Christian company against a state agency and an atheist organization against a group of elders fighters.

In each case, the secular claim won in the lower courts, which based their decisions on the understanding of the First Amendment that the High Court had developed from the 1960s.

In each case, the Supreme Court overturned the lower courts and ruled in favor of the religious claim. All three cases show the same distribution of judges: 7-2 with liberal justices Stephen Breyer and Elena Kagan joining five conservatives. The only dissenters were Justices Ruth Bader Ginsburg and Sonia Sotomayor.

A cross in Bladensburg, Maryland, was the subject of a major Supreme Court ruling on religious freedom.
REUTERS / Lawrence Hurley

State money for religious groups

In the first instance, the state of Missouri offered playground resurfacing to daycares that serve impoverished communities. A center run by the Trinity Lutheran Church ranked fifth out of 44 applicants based on the state’s objective criteria.

But the church daycare was denied state aid only because it was affiliated with a religious institution.

Ginsburg and Sotomayor agreed with this decision. In their view, Founding Father Thomas Jefferson’s “wall of separation between church and state” means that government cannot meddle with religious organizations or appear to endorse religion.

As Justice Sotomayor writes in her dissent, we must avoid “the dangers that result when the two intertwine … by drawing fairly clear dividing lines between church and state.”

Both judges support the court’s 1971 Lemon Test, which found that the government’s “excessive entanglement” with religion is a violation of the Constitution. If this standard is followed, “establishing religion” includes almost any government involvement with a religious group, which means that all government programs must remain exclusively secular.

But the majority of the current court believes that “the separation wall” was only Jefferson’s point of view, and not the consensus of the Founders codified in the text of the Constitution, which uses very different language.

In itself, the meaning of the establishment clause seems clear: no government involvement in religion. But a second provision of the First Amendment also concerns religion, the free exercise clause, which protects religious practice.

Together, these clauses seem to approve a balance: the government should neither impose nor prevent religion. It implies neutrality rather than separation. It is therefore not forbidden for the government to touch religion, but only to impose it on citizens.

The view of the majority of the Court in the Missouri case is that to treat a religious child care center differently from a secular child care center amounts to unconstitutional discrimination.

Liberal Judge Stephen Breyer agrees with the majority opinion. As he expressed in a 2019 opinion, we must consider “the fundamental objectives that the religious clauses were meant to serve: to ensure religious freedom and tolerance for all, to avoid social conflicts based on religion and to maintain this separation of Church and State which allows each to flourish in its separate sphere.

Gay rights and religious rights

The second case began when a gay couple planning a wedding requested a personalized cake from Masterpiece Cakeshop in Lakewood, Colorado in 2012. The owner declined their request. According to him, this would amount to performing a ceremony that would violate his deeply held religious beliefs.

The Colorado Civil Rights Commission fined the baker for violating state anti-discrimination laws. The Supreme Court overturned the ruling, saying the state of Colorado had shown “clear and unacceptable hostility” to the baker and his religious beliefs.

Many commentators saw this dispute as a matter of gay rights. But it is more precisely a matter of religious rights. The religious side complained, and that side won in a way that expanded religious rights.

“Hostility” is the key word in the Masterpiece Cakeshop decision. Justice Anthony Kennedy wrote that “the hostility of the state government was incompatible with the First Amendment guarantee that our laws were applied in a religiously neutral manner.”

Religious monuments in the public domain

The American Legion v. American Humanist was an old-fashioned religious dispute over a giant cross on public property.

Does the towering Bladensburg Cross of Peace, located on a freeway on the outskirts of Washington, DC, violate the First Amendment?

The American Humanist Association – a nonprofit promoting secularism whose motto is ‘Good Without God’ – has taken legal action demanding that the cross be demolished or moved from public land, where its members are said not to be. to see it while driving on the highway.

The Supreme Court said no. Like Kennedy in Masterpiece Cakeshop, Judge Samuel Alito in the Peace Cross case argued that the government’s hostility to religion was unacceptable: hostile to religion.

Supreme Court rulings over the past decade have helped shift the balance of power between religious and secular groups.
AP / Scott Applewhite

Powers of the majority to minority rights

Under these victories for citizens and religious institutions hides a change in legal status. Traditional Christians have long been seen as – by themselves and by the court – the dominant majority. Now, mainstream Christians argue that they are a persecuted minority with rights. The court tends to agree.

Around 2010, the dominant Protestant majority throughout American history became a minority. The active faithful now represent only a third of Americans.

Conversely, the number of Americans with no religious affiliation – the “nuns” – has increased dramatically. They represent around a quarter of the population today, up from around 15% just 10 years ago. About 35% of millennials and 17% of baby boomers are no longer.

Along with these changes, there has been a change in the perception of people experiencing discrimination.

According to a recent Pew survey, between 2016 and 2019, perceptions of discrimination against blacks, Hispanics, women and especially Jews increased. But so are perceptions of discrimination against Christians.

Among Republicans, the proportion who perceive “a lot” of discrimination against evangelical Christians fell from 21% in 2016 to 30% in 2019.

In constitutional decisions, rights often protect minorities against majorities. Falling numbers can mean less power but increasing protections.

A case accepted for the 2019-2020 term of the Supreme Court, Espinoza v. Montana, concerns the question of whether state-funded student aid programs can exclude religious schools.

This case will test whether the court’s transformation of the place of religion in American life continues.