Supreme Court Update: Amicus Briefs Filed by the General Synod

The General Synod of the United Church of Christ engages in advocacy through the filing of amicus, or friend of the court, briefs in certain lawsuits. An amicus brief is filed by a person or organization that is not a party to the lawsuit, but has an interest in the case, and can assist the court by offering particular information or a unique viewpoint on the issues and outcome that may not be offered by the parties to the case. Amicus briefs may be filed, with permission of the court, at any level of the proceeding.  

The General Synod most commonly files amicus briefs after cases have reached the United States Supreme Court and the issues to be decided have been narrowed. Many factors go into the decision to participate as an amicus, including whether the General Synod’s position in the matter is supported by a General Synod Resolution on the issue raised by the lawsuit. The amicus briefs filed by the General Synod in the past several years are available on the General Counsel’s website.

The United States Supreme Court’s 2021-2022 term ended on June 30, 2022. During this term, the General Synod participated as an amicus in three cases, the decisions in two of which represented significant changes in religious liberty law. Below is a summary of the cases, our position as an amicus in each case, and the implications of the Supreme Court’s decision.

New York State Rifle & Pistol Association v. Bruen

The Bruen case involved a challenge to a New York state gun control law that required a person seeking an unrestricted license to carry a concealed firearm outside their home to show “proper cause,” or why they had a special need for self-protection. The law was challenged by two individuals and a gun-rights advocacy group as a violation of the Second Amendment of the U.S. Constitution. The General Synod has spoken on gun control and gun violence several times, most recently in the Resolution On Recognizing and Studying Gun Violence as a Public Health Emergency at the Thirty-First General Synod in 2017.

The General Synod joined a number of other denominations including the Episcopal Church, the Evangelical Lutheran Church in America, and the Central Conference of American Rabbis in an amicus brief arguing that New York’s law protected religious communities from many risks and burdens associated with the unrestricted public carry of firearms, including protecting houses of worship from gun violence. The brief also argued that unrestricted public carry of guns would chill the free exercise of religious beliefs by deterring people from congregating together for worship.

The Supreme Court, in a 6-3 decision, held that New York’s law violated the Fourteenth Amendment because it prevented law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public. The impact of this decision is that similar laws in other states will be invalidated, increasing the number of individuals who are carrying concealed weapons.

The Council for Health and Human Service Ministries, an Affiliated Ministry of the United Church of Christ, created a Gun Violence Advocacy Toolkit to help UCC congregations and members advocate for research on the health effects of gun violence. Find other UCC resources on ending gun violence here.   

Some states have laws that prohibit the carrying of weapons inside houses of worship. Some states do not. In general, churches are private property and churches can prohibit members and guests from bringing weapons into the church. If you have a question about your state’s laws on guns in churches, please consult a local attorney for more information. The Insurance Board has a number of resources relating to active shooters and church safety.

Carson v. Makin

The Carson case involved a challenge to a Maine program that ensures all students in the state have the opportunity to receive a free public education. Some school districts in Maine have too few students to operate their own schools. These districts can make arrangements with private schools or other public schools to educate their students, or they can allow students to choose their own school and the program will pay the student’s tuition. Maine only allowed tuition payments to private schools that did not provide religious instruction.The law was challenged by parents who wanted to use the tuition payments at a Christian school. They argued that the exclusion of religious schools from the tuition-assistance program violated the Free Exercise Clause of the First Amendment.  Maine argued that the purpose of the program was to replace a public education not otherwise available, and was thus limited to non-sectarian schools.

The General Synod has spoken a number of times on religious liberty and the separation of church and state, including a 1995 Resolution On the Need for Educating Members of the UCC about the Principle of Separation of Church and State, 95-GS-21. In a brief submitted with a number of partners, including Americans United for the Separation of Church and State, the American Civil Liberties Union, the Baptist Joint Committee for Religious Liberty, and the Evangelical Lutheran Church in America, among others, amici argued that the parents’ argument would require states for the first time to fund distinctly religious activities. This, the brief argued, would be contrary to the original meaning of the Free Exercise clause, which prohibits the state from compelling people to contribute money to support religion, and prohibits the state from being involved in specifically religious activities. Moreover, such a ruling would contravene precedent of the U.S. Supreme Court, which specifically permits states to deny tax dollars for specifically religious uses.

The Supreme Court, in a 6-3 decision, held that Maine’s tuition-assistance program violated the Free Exercise Clause of the First Amendment because it was only available to nonsectarian schools. In other words, Maine has to pay for students to attend religious schools if it is paying for children to attend other private schools. This decision rejects years of precedent that the government cannot sponsor or fund religion, and will potentially require governments to fund specifically religious activities. The Establishment Clause is thus substantially weakened, with Free Exercise being elevated to the highest importance.  

The impact of this decision on religion cannot be overstated. The United States is not a Christian nation. Our government is understood to be secular, yet when it funds specifically religious activities, like religious education, that secular nature is called into question. Moreover, when the government begins to fund religious activities, it must also regulate that funding and those activities, interfering with the freedom of religious organizations to practice their faith. Justice Sotomayor’s dissent summarizes the path of the Court: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. . . . Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

Some of our partners in the brief have issued statements on the Court’s decision in Carson. Click the links below to learn more:

Kennedy v. Bremerton

The Bremerton case involved a high school football coach who was placed on administrative leave by the school district for praying at the 50-yard line with students who joined him following football games, following notice by the school district that such prayers violated school policy. The school district offered him alternatives to such prayers, but Kennedy continued to pray at the games in the same manner. The school district did not renew his contract for the following season, and Kennedy sued, claiming the school district violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment. The school district argued that the prayers pressured student players to join and violated the Establishment Clause of the First Amendment. 

As noted above, the General Synod has spoken a number of times on religious liberty and the separation of church and state. Additionally, it has endorsed Religion in the Public Schools: A Joint Statement of Current LawIn a brief filed by the Baptist Joint Committee on Religious Liberty and joined by the American Jewish Committee, the Evangelical Lutheran Church in America, and the General Synod of the United Church of Christ, the amici argued that the coach’s prayers were governmental speech because they were given to an audience of students in public school, and were restricted by the Establishment Clause of the First Amendment. The brief described the facts of the case that showed the prayers pressured students to join, and reviewed the history of school-sponsored prayer being held unconstitutional. It also acknowledged that students can express their religion in school when it does not interfere with education, and that school employees can engage in private religious exercise in school.

In yet another 6-3 decision, the Supreme Court held that the coach’s public religious expression was protected by the Free Speech and Free Exercise Clauses of the First Amendment. The Court’s opinion paid little attention to the established facts of the case that showed Kennedy’s prayers were public and took place immediately after the games, the prayers and his other religious speech to students were ongoing for several years, and that students were invited to attend the prayers and some felt pressured. Instead, the Court characterized the behavior as personal and private, and stated no evidence existed that any players felt coerced by the coach’s behavior. Such a ruling ignores years of precedent allowing school districts the authority to monitor religious communications between teachers and students, and prohibiting the state from supporting or promoting religion in public schools.

This decision further erodes what little was left of the Establishment Clause after the Carson decision, and is detrimental to religious liberty. A teacher is now free to pray on school premises and on school time, in front of students, which will no doubt coerce students who want to remain in the teacher’s good graces to join in, regardless of the students’ beliefs. A state government actor’s religious expression has been prioritized over the fundamental rights of students.

The Baptist Joint Committee on Religious Liberty, one of our partners in the brief, issued a statement in the case.  

The information provided in this article is not legal advice.  If you need legal advice, please consult with an attorney.

Categories: General Counsel Blog

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