The Weaponization of Religious Freedom
By
Jeff Oster
Posted: 2025-05-13T21:00:00Z
The Day the Scales of Justice Bent Under the Weight of Religious Freedom
The First Amendment was masterfully written by James Madison to address the relationship between religion and government. In an effort to prevent the entanglement of religion in government, Madison strove to create balance between The Establishment Clause and The Free Exercise Clause.
In 1971, in the spirit of Madison, The Warren Court did their best to create an objective set of guidelines for school/government entanglement with the Lemon test. In Kurtzman v. Lemon, The Court said that for tax dollars and religious schools to engage with each other, both parties had to agree that:
- The primary purpose of the assistance was secular.
- The assistance may neither promote or inhibit religion.
- There is no excessive entanglement between the church and state.
Neil Gorsuch invalidated this 50 year old case law in Kennedy v. Bremerton (2022) by saying that the court had long abandoned the Lemon test. He stated that the Lemon test was too abstract and ahistorical and should have “reference to historical practices and understanding.”
Clarence Thomas argued that the Lemon test is vague and leads to unpredictable outcomes. Thomas argued against The Establishment Clause stating that it is violated only when there is legal coercion rather than a broader view of endorsement or entanglement.
Oklahoma Charter School Board v. Drummond was the perfect opportunity for the conservative arm of The Court to invalidate prior case law and objective guidance from the Warren Court, only to replace it with new, subjective decisions. In defense of his actions, Gorsuch said that the Lemon test was a misadventure and claimed that it had been shelved by The Court. In response, Justice Sotamayor said that the conservative branch of The Court has eroded the separation of church and state, moving towards a place where the separation is considered a “constitutional violation” rather than a “constitutional commitment”.
The legal arguments in this case are mind boggling in the latitude given to St. Isidore of Seville Catholic Virtual School. Enjoy the oral arguments and see how SCOTUS is rapidly weaponizing religious freedom.
https://www.supremecourt.gov/oral_arguments/audio/2024/24-394
*Portions of this post are taken directly from Google AI.