And the Wall Comes Tumbling Down: How the Supreme Court Is Striking the Wrong Balance between Majority and Minority Rights in Church and State Cases

Abstract

One of the Supreme Court’s primary responsibilities in church and state cases is to strike the right balance between majority and minority rights. But in two high profile cases decided in its last term, the Supreme Court struck the wrong balance in both. In Town of Greece v. Galloway, concerning prayers at the beginning of a small town’s board meetings, the Court was too deferential to the religious majority’s preferred prayer practice and inadequately sensitive to the practice’s impact on religious minorities. In Burwell v. Hobby Lobby Stores, Inc., concerning the right of for-profit corporations to be exempted from the Affordable Care Act’s contraception mandate, the Court was too deferential to the religious minorities’ objections and not sufficiently protective of the secular majority’s interest in women’s healthcare. The common thread in these cases is the advancement of religious interests over secular. The legislative prayer case made it more acceptable to use overtly sectarian prayers in the public sphere. The contraception mandate case made it easier for religious groups to gain exemptions from secular laws. Each case removed one more brick from the wall separating church and state. This essay explains how the Court decided these cases, how its reasoning was flawed, and why each case would have been better decided if the Court had struck a more sensible balance between majority and minority interests.

Keywords: Supreme Court, church and state, religious freedom, constitutional law

JEL Classification: K10