Wither, Religious Liberty

Authors

Amanda Harmon Cooley

Abstract

During the oft-deemed Constitutional Revolution of 1937, the U.S. Supreme Court effected a significant sea-change in its substantive due process liberty analysis. In West Coast Hotel v. Parrish, the Court held that the Due Process Clause’s liberty provision does not protect absolute freedom of contract, signaling the demise of the Lochner era. Almost a century later, the current Supreme Court’s supermajority bloc is now infamous for its own seismic shift in liberty analysis. This Court’s incontrovertible Constitutional Revolution of 2022 was not limited to only substantive due process, which the Court shifted with its decision in Dobbs v. Jackson Women’s Health Organization. It also redefined religious liberty in Kennedy v. Bremerton School District through an erroneous deviation from stare decisis and seventy-five years of Madisonian-originalist school case law.

This Article analyzes how the current Court has degraded constitutional liberty in public schools by interpreting the Establishment Clause through a constricted historical lens aligned with the legislative prayer exception interpretive modality. The net result of this degradation has been a meaningful and significant infliction of harm on the Constitution, religion, and the American people. This jurisprudential retrograde slide into a narrow historicism in contravention of the core meaning and purposes of the First Amendment is swiftly becoming the watermark of the current Court. The interpretive misstep of Kennedy is gaining momentum, too, being implemented through anti-Madisonian, unconstitutional religious exercises in public schools, like public school chaplains and state-led prayer. Consequently, America should and must take alarm at this substantial jurisprudential shift and its repercussions. Without such alarm, the ultimate legacy of the Roberts Court will be the withering, if not outright elimination, of religious liberty in public schools.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Amanda Harmon Cooley, Wither, Religious Liberty, 50 BYU L. Rev. 1297 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss5/8