Near the conclusion of his Pallium Lecture, titled “The Supreme Court and Religious Liberty,” Joseph D. Kearney, dean and professor at the Marquette University School of Law, noted the court had done little to protect religious liberty.

Joseph D. Kearney, dean and professor at the Marquette University School of Law, served as a law clerk for Supreme Court Justice Antonin Scalia, 1995-1996. He spoke on “The Supreme Court and Religious Liberty” during the Pallium Lecture on Oct. 21 at Mount Mary University. (Submitted photo courtesy Marquette University)“Consider that a broad theme of my lecture has been that people are wrong to think that the Supreme Court has protected religious liberty for the past two centuries. In fact, it has done rather little in that regard – and even less by way of protecting religious liberty separate and apart from ‘liberty’ more generally,” he said.

For 50 minutes prior to that statement, Kearney delivered a detailed, scholarly history lesson to more than 200 people who attended the Archdiocese of Milwaukee’s lone Pallium Lecture for this year, Wednesday, Oct. 21, at Mount Mary University.

Limited reach

He divided the court’s work into three eras. The first, from the establishment of the court to the early 1960s, included nearly a century when “the court did very little with the First Amendment,” according to Kearney.

“… recall that it (First Amendment) speaks in terms of federal power – Congress shall make no law (respecting an establishment of religion, or prohibiting the free exercise thereof). That limited reach meant that there was little for the United States Supreme Court to do,” he said.

Citing early cases involving churches, Kearney said the court had little to do with developments regarding religious freedom.

“For more than half our history, religious liberty was a matter that simply was not a notable portion of the Supreme Court’s work,” he said.

Kearney cited the significance of the Fourteenth Amendment, adopted in 1868, which “eventually was held to apply, against, the states, most of the same restrictions applied under the Bill of Rights to the federal government. This is the so-called incorporation doctrine….”  

“The Fourteenth Amendment’s protections were held to include the First Amendment’s guarantees, and it therefore no longer mattered that the earlier amendment spoke in terms of things that Congress might not do,” he said. “The First Amendment’s prohibitions now applied to the states as well.”

Kearney said he was not suggesting “nothing happened during this time affecting religious liberty,” but “the Supreme Court had little to do with developments around religious freedom.”

“This may seem a long time ago, and in many respects it was, but it is striking to note that, for more than half our history, religious liberty was a matter that simply was not a notable portion of the Supreme Court’s work,” he said.

Exceptions hallmark of second era

The second era of the Supreme Court, according to Kearney, opened with Sherbert vs. Verner, a 1963 case involving a Seventh-Day Adventist whose First Amendment rights were violated when, having been fired by her employer for refusing to work on the Sabbath, was denied unemployment benefits by South Carolina’s Employment Security Commission, which did not accept her religious justification for refusing to work on Saturday.

“The important point emerging from Sherbert is that the court might require an exception based on religion to a law or government rule, even where that law or rule was neutral and of general application,” he said. “That the First Amendment could require such an exception would become the hallmark of the court’s second era of free exercise jurisprudence.”  

The Supreme Court’s third era, according to Kearney, began in 1990, when, in Employment Division vs. Smith, it ruled that employees ingesting peyote, which they considered part of religious ceremonies, could be fired for misconduct and denied unemployment benefits.

Quoting Justice Antonin Scalia, for whom Kearney served as a law clerk in 1995-1996, he said, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”

While citing a few other cases, Kearney said, “There is little else by way of constitutional law in this third era.”

He said that while he had finished talking about the court’s “engagement with the First Amendment’s Free Exercise Clause,” he had not finished “its grappling with religious freedom.”

“The reason is that, shortly after Smith, the United States Congress got into the act and gave to citizens broader free exercise rights and to the courts the responsibility of protecting them,” Kearney said, citing the 1993 Religious Freedom Restoration Act (RFRA) passed by Congress and signed by President Bill Clinton.

In explaining the impact of RFRA, Kearney said, “The federal government of today has become rather more a government of general jurisdiction than ever previously,” adding “there is a lot of federal government action for which federal law now requires accommodations based on religious liberty.”

What is ‘religion’?

He noted that another change that has occurred as a result of the court’s “expanded version” of the Free Exercise Clause is how religion is defined.

“… the court has moved from a largely monotheistic view to a more broadly theistic view to an essentially spiritual, non-theistic (though not necessarily atheistic) approach to religion,” Kearney said.

“If the judiciary is no longer protecting practices because they stem from obligations arising from one’s creator, discerned from Scripture and supported by the teachings of church leaders and theologians, but instead because a claimant simply feels a higher power or inner calling (perhaps as much conscience as religion), then the judiciary is not operating with a coherent theory of religious freedom but rather just deferring to individuals’ idiosyncratic senses of self-realization, autonomy, etc.,” he said.

Referencing Psalm 146:3 – “Put not your trust in princes,” Kearney said, “I confess that the admonition is taken out of context, but is this not the right attitude for citizens of a democracy to cultivate? Princes in black robes are no more to be trusted to protect our freedoms than any others,” he said. “In the end, it is only the hard work of influencing elected representatives to pass laws (such as RFRA, perhaps) and of electing executives who truly cherish religious liberty themselves that will give its proponents a fighting chance.”