Separating Religion and Government…But What Is Religion?: A Look at the US Supreme Court

The United States Supreme Court will hear arguments in a key religious freedom case, Espinoza v. Department of Revenue, in January 2020. In that case, the Court will decide whether a taxpayer-funded scholarship program can, even indirectly, fund a private religious school. The case has ignited a debate about no-aid clauses to religion in state constitutions and, more broadly, the separation of church and state. But is it possible ever truly to separate church and state? And how do courts decide what is religious–and therefore separable from government? In this podcast, noted religious liberty lawyers Maggie Garrett (Americans United for Separation of Church and State) and Jennifer Hawks (BJC) discuss the Espinoza case before diving into other pivotal, recent decisions–including Burwell v. Hobby Lobby, Trinity Lutheran Church v. Comer, and Employment Division v. Smith–that raise questions about how courts define religion and religious freedom. We discuss how claims for religious exemptions offer insight into operating definitions of religion and the ways those definitions are predicated on sincerely held beliefs and/or actions (whether those actions take place within the four walls of a house of worship or beyond those walls). In other words, what do religious exemptions tell us about what counts as “truly” religious? Are beliefs alone protected? Or behaviors too? And how does a Court decide whether it has the authority to grant an exemption to a neutrally applicable rule or to forbid actions linked to sincerely held beliefs, religious or not? Along the way we discuss taxes and religion, dignitary harm, the “religious marketplace” and more.