While the Supreme Court’s decision to abolish the right to abortion has caused much ink to flow, this same block of conservative judges who overthrew Roe vs. Wade also dramatically redefined the contours of religious liberty that term and did so in a way that downplayed the true nature of the changes they made in this area of ​​the law.

The pair of historic decisions handed down last week—Carson v. Makin and Kennedy v. Bremerton School District— paint a bleak picture of the growing protections the court’s conservative bloc has granted to people seeking religious exemptions from secular mandates and the demands it is willing to impose on governments to support religious institutions and activities.

carson and kennedy also laid bare the legal strategy that has emerged among the six Republican appointees who now constitute a supermajority on the Court. In recent years, these conservative justices have made incremental changes to the law, moving the Court in a rightward direction, albeit modestly enough to occasionally call on liberal justices to join the conservative majority.

When the Conservative bloc veered further to the right in carson and kennedyshe asserted that these two cases were merely an extension of the norms established in these recent precedents.

Writing for the majority in kennedy, for example, Judge Neil Gorsuch relied heavily on these recent rulings – many of which were written by very conservative judges who now constitute a super majority on the Court – to allow a football coach from a public high school to lead post-game prayers. in the field. In a footnote listing favorable precedents, Gorsuch cited ten cases, half of which have been decided since 2017, when he joined the Court as former President Donald Trump’s first appointment to the High Court.

These references to recent precedent have obscured the true nature of the extent to which the Court has gone to erode the separation of church and state that has long governed American law.

Justice Sonia Sotomayor pointed to the tactic deployed by the conservative majority to recast its actions as simply a natural evolution of the Court’s case law. “The Court relies on an assortment of pluralities, agreements and dissents from members of the current majority to effect fundamental changes in the Court’s jurisprudence on religious clauses,” she wrote in kennedy referring to the fact that the majority relied on recent precedents to achieve a sweeping result, “while proclaiming that nothing has changed at all”.

In carson, the same six judges also used recent precedent to dismiss Maine’s educational program. The state provided funding for parents in sparsely populated areas without public schools to send their children to a secular private school instead. The exclusion of religious schools clashed with conservative judges.

Throughout the majority opinion, Chief Justice John Roberts Jr. frequently cited two decisions from the past five years –Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue– which expanded the scope of the Free Exercise Clause granting religious freedom while narrowing the Establishment Clause, the First Amendment provision preventing government support of religious institutions and activities.

It was no coincidence that Roberts wrote the decisions in both cases.

In 2017, Trinity argued that the First Amendment’s free exercise clause prohibited the government from excluding a church from receiving benefits that were otherwise available to other institutions—in this case, funds for a playground. Espinozawhich fell three years later, held that if a state chose to subsidize private education through scholarships, it could not exclude students who planned to use those funds to attend religious school.

Roberts developed the concepts introduced in these two cases in carson by extending government funding to religious institutions not only for secular purposes, such as the playgrounds at issue in Trinity– but by making the funding of overtly religious activities such as religious education compulsory.

“What a difference five years make,” Sotomayor pointed out in his dissent in carson. “This Court,” she warned in strident terms, “continues to dismantle the wall of separation between Church and State that the Framers fought to build.” The majority, she explained, adopted “arguments from earlier separate writings” and ignored “decades of precedent” to overturn “constitutional doctrine”.

This term serves as an indicator of what to expect in the future. Now outnumbering their liberal colleagues by a two-to-one margin since Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg in 2020, the Court’s conservatives seem willing to change the legal landscape far more aggressively than the previous years.

Through these cases, the Court has further reshaped the delicate balance between the free exercise and establishment clauses of the First Amendment, for example. The two provisions, explained Justice Stephen Breyer in his dissent in carson, “are often in tension…and often ‘exert contradictory pressures’ on government action. He pointed out that conservative justices were defending the free exercise clause while largely ignoring the importance of the establishment clause and, in doing so, damaging the “compromise” between the two.

Sotomayor made a similar point. The “consequences of the Court’s rapid transformation of the religion clauses should not be underestimated”, she warned in carson. “The Court’s increasingly expansive view of the free exercise clause,” she wrote, “risks swallowing up the space between the religion clauses.”

In addition to changes to carson and kennedy, the court’s conservatives have also expanded religious exemptions to anti-discrimination laws and secular mandates in recent years. In hobby hallfor example, the Court allowed a private company to refuse to cover contraception insurance that was required by the Affordable Care Act based on the religious preferences of the owners of the company. Masterpiece pastry allowed a Denver baker to refuse to bake a cake for a gay wedding.

Although neither of these cases deals with the scope of the establishment clause, which was at the heart of carson and kennedythey also embody the revolutionary changes instituted by conservative justices in the field of religion.

Sotomayor’s last words in carsonin which she expressed her “increasing concern about the direction this Court will take” echoes this new reality.