By: Stephanie Taub, Senior Counsel for First Liberty Institute
Legal experts John Yoo and James Phillips have recently argued that 2019 could be a historic year of precedent-setting Supreme Court cases because this is the first time since 1936 that the Court has had a consistent conservative majority. This Court could return us to an era of judicial restraint where the majority of the Justices affirm that it is not their place to create or change the law, only to fairly enforce the law that already exists.
Although Yoo and Phillips discuss the implications of this development for administrative agencies and the separation of powers, there is one more area of law that could be dramatically affected by this year’s Court: the Constitution’s religion clauses. In particular, this Court could bring clarity to the establishment clause case law.
The First Amendment proclaims that Congress shall make no law respecting an establishment of religion (the establishment clause) or prohibiting the free exercise thereof (the free exercise clause). Since the middle of the 20th century, the Supreme Court has been divided on how we should interpret the establishment clause. Different justices have proposed different tests, and these standards have been used inconsistently, creating an unfortunate amount of confusion and costly litigation.
Most First Amendment scholars agree that the case law surrounding the establishment clause needs clarification. Ed Whelan nicely described this sentiment, calling the current state of the law a “sorry mess.”