Supreme Court's First and Second Amendment Jurisprudence Shifts Over Two Decades

Why it matters locally: Changes to First Amendment interpretations regarding religious liberty could influence existing state laws concerning funding for religious schools and accommodations for religious practices in Minnesota. Shifts in Second Amendment jurisprudence may affect current and future gun control legislation within the state, potentially leading to challenges against local ordinances or state statutes.

WASHINGTON – The Supreme Court has significantly altered its interpretations of the First and Second Amendments over the last two decades, according to an analysis coinciding with the publication of a constitutional law casebook's fifth edition. Twenty years ago, the Supreme Court maintained a strict separation of church and state, reviewed free exercise restrictions with deference, and did not actively enforce the Second Amendment. This position has changed, with the Court expanding religious liberty and recognizing individual gun rights. ### Expanding Religious Liberty In 2006, the concept of "religious liberty" was developing. Justices, including Antonin Scalia, generally expressed skepticism towards religious litigants seeking exemptions from neutral, generally applicable laws. The free exercise of religion doctrine was not widely controversial, and casebooks dedicated limited space to it. Early rulings, such as *Reynolds v. United States* (1878), differentiated between belief and conduct, protecting religious beliefs but allowing prosecution for practices like polygamy. *Sherbert v. Verner* established a strict scrutiny standard for neutral laws burdening religion, requiring the government to demonstrate a compelling interest for imposing restrictions. However, *Employment Division v. Smith* (1990) later narrowed *Sherbert*, applying rational basis scrutiny to such laws unless they specifically targeted a faith, as seen in *Church of Lukumi Babalu Aye v. City of Hialeah*. During the early Roberts Court era, government policies often conflicted with both minority and mainstream religious beliefs. Protections for religious liberty expanded gradually. *Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC* (2012) introduced the ministerial exception, exempting some religious employers from discrimination laws. Subsequent cases, including *Trinity Lutheran Church v. Comer* (2017) and *Espinoza v. Montana Department of Revenue* (2020), addressed taxpayer funding for religious schools, ruling that states could not deny funding or educational tax credits based on a school's religious status. *Burwell v. Hobby Lobby Stores, Inc.* (2014) granted a religious corporation an exemption from a federal contraceptive mandate. More recent developments include the application of *Mahmoud v. Taylor*, which broadened the scope of *Wisconsin v. Yoder* (1972) to allow parental opt-outs from instruction interfering with religious upbringing. ### Revisiting the Establishment Clause The 1971 ruling in *Lemon v. Kurtzman* established a test prohibiting excessive entanglement between church and state. In 2008, the *Lemon* test was the prevailing standard, though cases like *Marsh v. Chambers* (1983), which upheld legislative prayer, did not invoke it. *McCreary County, Kentucky v. A.C.L.U. of Kentucky* (2005) applied *Lemon* to block a Ten Commandments display, while *Van Orden v. Perry* (2005) upheld a similar display on different grounds. By 2017, the Court's approach began to shift. *Town of Greece v. Galloway* (2014) upheld legislative prayer using a "history and tradition" approach, and *American Legion v. American Humanist Association* (2019) upheld a public display of a Latin Cross as a war memorial. In 2022, *Kennedy v. Bremerton School District* upheld a football coach's right to pray on the field, effectively abandoning the *Lemon* test. The Court's current focus on the establishment clause includes cases like *Our Lady of Guadalupe School v. Morrissey-Berru* (2020), which expanded the ministerial exception, and *Carson v. Makin* (2022), which prohibited denying tax credits to religious schools. ### Redefining the Second Amendment In March 2008, the Supreme Court heard arguments in *District of Columbia v. Heller*. Before this, the Second Amendment received limited attention from the Court, with *United States v. Miller* (1939) being a primary precedent. This ruling upheld a conviction related to carrying a sawed-off shotgun. By 2013, the Court's Second Amendment jurisprudence had developed with *District of Columbia v. Heller* (2008), which affirmed an individual right to keep and bear arms, and *McDonald v. City of Chicago* (2010), which applied this right to the states. Despite these rulings, lower courts often upheld gun regulations, and the Supreme Court did not address a major gun case for over a decade. More recently, the Court has issued four decisions further defining the Second Amendment. *New York State Rifle & Pistol Association, Inc. v. Bruen* (2022) established a right to carry firearms outside the home. *Wolford v. Lopez* invalidated a Hawaii law that broadly banned carrying firearms in public. The Court also addressed who can bear arms, ruling in *United States v. Rahimi* (2024) that individuals subject to domestic violence restraining orders cannot possess firearms, while *United States v. Hemani* (2024) held that marijuana users could bear arms. Upcoming cases, such as *Viramontes v. Cook County*, will address whether the Second Amendment protects the right to possess semi-automatic rifles.