The Aftermath of Hobby Lobby and Obergefell: A Reconceptualization of Religious Freedom in the United States and its Potential Implications for Public Schools and Pluralist Democracies

Abstract

Restricting public employees' free exercise rights or the State to maintain neutrality toward religion has been longstanding precedent in the United States. It has certainly been the case in US public schools beginning in the 1940s and affirmed through the courts over and again through much of the 20th century. The aftermath of 2 recent Supreme Court decisions challenges this long-held precedent, however, as it has led to several instances in which public employees have requested religious exemptions from their professional obligations (e.g., Kentucky court clerk Kim Davis' refusal to grant marriage certificates to same-sex couples). This article provides a foundational framework for exploring the recent reconceptualization of religious freedom and its possible implications for public schools and the larger project of advancing a liberal, pluralist democracy were teachers to refuse to fulfill central elements of their job on the basis of religious objections.

Notes

1. The Bill of Rights, containing the first 10 Amendments to the U.S. Constitution, outlined a set of individual rights and limitations of government powers. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

2. Though the Hobby Lobby (2014) case deals with the private sphere, we include it in our analysis because we believe the Court's interpretation of Religious Freedom Restoration Act (RFRA) legislation has important implications for US public schools and for pluralist democracies in general. Religious Freedom Restoration Act. (1993). P. L. 103-141, 107 Stat. 1488.

3. We understand public schools in the United States to be those regulated by the State and supported by public funds. These schools are distinguished from private schools—that is, privately operated, tuition-funded schools that are much more loosely regulated.

4. The average for all Organisation for Economic Cooperation and Development (OECD) countries is around 8,000 hr of legally-mandated schooling.

5. As Burke and Segall (2011) noted, this process of secularization does not mean that all vestiges of religion—Protestant Christianity in particular—have been removed from US public schools. They highlight how, to the contrary, long maintained, religiously-rooted practices of organizing school schedules on a Christian calendar and administrative structures on Catholic hierarchical models and treating children as sinners in need of redemption leads to a “normalized and not-so-silent authoritative religious discourse” in US public schools (p. 644). Furthermore, the courts have emphasized the importance of teaching about religion; schools are prohibited from viewpoint discrimination and must provide equal access to religious groups when they open their doors to nonreligious groups, and students maintain robust protection of their religious freedoms on public campuses.

6. Space limitations do not permit a thorough review of the role of religion in US public schools and their precursors, but it is of critical importance to appreciate the ways in which the history of US education is deeply intertwined with Protestant Christianity. The cursory summary highlights some examples. Colonial education was largely sectarian and private. The earliest tax supported schools in what is now the United States were established in Massachusetts by the School Law of 1642 and The Old Deluder Satan Law of 164 for the purposes of teaching young children to read their Bibles so that they might not be led astray from the Christian path to salvation. Most states of the early republic had established religions and their schools reflected this. Secularization of US. schools was a gradual process, perhaps beginning in some schools as early as the publication of Noah Webster's “Blue-Backed Speller” in the late 18th century and accelerated by Horace Mann's promotion of nonsectarian Protestantism in Massachusetts' common schools in the mid-19th century. Christianization of American Indians continued as a top priority of federally-funded Indian boarding schools from their inception until the early 20th century.

7. The Court ruled that the practice of polygamy was not protected under the Constitution. The majority opinion quoted from Thomas Jefferson's Virginia Act for Establishing Religious Freedom (1786): “[I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order,” adding, “In these two sentences is found the true distinction between what properly belongs to the Church and what to the State.”

8. Specifically, the Court ruled that a Catholic Church-staffed hospital could receive public funds on the grounds that it had been created by an act of Congress for the purpose of treating sick and disabled veterans. Thus, the Court found that providing tax revenue to the hospital served a secular purpose and was not a violation of the Establishment Clause.

9. Similarly, teachers' right to free speech is greatly restricted when they are acting in their capacity as public employees. For instance, the First Amendment does not protect a teacher whose speech interferes with the proper performance of her job or the regular operation of the school, generally (Pickering v. Board of Ed., 1968). Likewise, when a public employee is speaking as part of his official duties, his speech has no First Amendment protections and can be grounds for discipline or dismissal; from a legal standpoint, the rights to political expression (California Teachers v. San Diego, 1996; Green Township v. Rowe, 2000) and academic freedom are virtually nonexistent for K–12 public school teachers, who do not have a legal right to determine what they say in the classroom; “they are merely ‘hired speakers’ who ‘must stick to the prescribed curriculum’ and refrain from expressing their ‘own views’ on the subject under discussion” (Garcetti v. Ceballos, 2006; National Education Association, 2007). Nor can public employees censor school or library books for the purpose of suppressing ideas (Board of Education of Island Trees v. Pico, 1982).

10. Larson v. Valente (1982); Marsh v. Chambers (1983); Lee v. Weisman (1992).

11. Wallace v. Jaffree (1985), Stevens, J., discussed at IIIC2d(7); Grand Rapids School Dist. v. Ball (1985), Brennan, J., discussed at IIID7l; Allegheny v. ACLU (1989).

12. Two significant cases dealing with the Amish illustrate ways in which the Court applied the compelling interest criterion of the Sherbert Test. In Wisconsin v. Yoder (1973), the Court ruled that an Amish community did not have to send its children to school past the age of 14 because the State failed to show that its interest in educating the children outweighed the community's religious interests. In U.S. v. Lee (1982), the Court concluded that, although it conflicted with his religious faith, an Amish man had to pay social security taxes because the federal government had a compelling interest to collect tax revenues.

13. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), Bethel County School District No. 403 v. Fraser, 478 U.S. 675 (1986), Harper v. Poway Unified School District, 445 F. 3d 1166 – Court of Appeals, 9th Circuit (2006), Nuxoll ex rel. Nuxoll v. Indian Prairie School District No. 204 Board of Education, 523, F.3d 668 (7th Cir. 2008).

14. In Smith(1990), two Native Americans challenged an Oregon decision to deny unemployment benefits to them because they were fired for using peyote in a religious ceremony, an act contrary to Oregon law.

15. E.g., Connecticut, Rhode Island, Indiana, Arkansas, North Carolina, and Mississippi have RFRA laws. Many other states have considered or are currently considering RFRA bills (e.g., Indystar, 2016; American Civil Liberties Union, 2016).

16. For example, Justice Ginsburg noted that in Yoder (1972), the Court emphasized that accommodation of the Amish community's religious liberty claim in no way harmed the physical or mental health of the children or the safety, peace, order, or welfare of the public. In Estate of Thornton v. Caldor, Inc. (1985), the Court invalidated a state statute requiring employers to accommodate an employee's Sabbath observance because that statute failed to take into account the burden such an accommodation imposed on the employer or other employees.

17. See, for example, Ford (2016).

18. Memorandum re. Mississippi House Bill 1523, New York, Columbia University School of Law, April 25, 2016. Retrieved from https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/files/memo_regarding_ms_hb1523.pdf

19. U.S. District Court for the Southern District of Mississippi Northern Division, Case 3:16-cv-00442-CWR-LRA Document 35 Filed 06/30/16.

20. In Democratic Education, for instance, Amy Gutmann (1987) described these relevant stakeholders and the inherent tensions, given their different positions and commitments. She considered the merits of the family state, which puts the needs of society at the forefront; the state of families, which privileges the interests of parents; and the state of individuals, which treats personal liberty and autonomy as of greatest value.

21. Josh Corngold (2011) criticized Gutmann's (1987) theory of democratic education for prioritizing democratic participation above individual wellbeing. By placing the highest value on social reproduction, Corngold argued, Gutmann shortchanged the basic interest of individual children in developing a capacity for personal autonomy. We are sympathetic to Corngold's critique.

22. Though it might be helpful to include discussion of theorists whose works complicate conceptions of human rights, this additional discussion would exceed the scope of our argument, which we acknowledge to have significant limitations in that regard.

23. Though our article focuses on US contexts, there is an emerging body of literature on global citizenship education that addresses these and other issues central to democratic education (e.g., Andreotti & Souza, 2011 Davies & Graham, 2009; Marshall, 2005; Pashby, 2008; etc.).

24. Though some parents have made this sort of argument to exempt their child from general educational requirements on the basis that they conflict with sincere religious beliefs (e.g., Brown, 2016; Mazza, 2016).