It has been an eventful term for the U.S. Supreme Court, which has provided many closely decided cases and ended with the retirement of Justice Anthony Kennedy. For those interested in free speech and religious liberty, there have been plenty of decisions to keep track of and digest. Here is what you need to know.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

The story is well-known. Jack Phillips, a Christian cake shop owner from Colorado, refused to create a cake for the same-sex “wedding” of two men. They filed a complaint with the Colorado Civil Rights Commission, which held that Mr. Phillips violated the state’s public accommodation laws. Much of the litigation centered around whether creating a wedding cake fell under the free expression protections of the First Amendment, but the Court punted on this argument, leaving it for a future case. Instead, the Court ruled for Mr. Phillips on two separate grounds.

First, the Commission did not employ religiously neutral standards when deciding Mr. Phillips case, and instead showed unwarranted hostility towards his Christian faith. One official on the Commission even referred to Mr. Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use.”

Second, the Court found that the Commission had used different standards for different bakery owners. An individual named Bill Jack (no relation to Jack Phillips) went to several bakeries asking them to create a cake with a message critical of homosexuality derived from the Bible and was—unsurprisingly—refused service. When complaints were filed, the Commission found that bakeries can refuse to make a cake with a message they deem to be derogatory.

The popular narrative is that this case was decided on narrow grounds and sets little precedent for future cases. However, Masterpiece has already proven to be more influential than that narrative suggests. Anti-religious animus by government officials is common in religious liberty cases, and there’s no better example than Arlene’s Flowers.

Arlene’s Flowers Inc. v. Washington

Similar to Jack Phillips, Barronelle Stutzman, a Washington florist, refused to offer her services for a same-sex wedding. However, in this case, when she refused to create a floral arrangement for a same-sex couple, it was not the couple who took action. Rather, the state’s attorney general, on his own initiative, filed a complaint against Ms. Stutzman, showing unusual hostility towards her religious beliefs. This led to the Washington Supreme Court holding that Ms. Stutzman engaged in unlawful discrimination. However, the U.S. Supreme Court vacated the decision and remanded it back to the state supreme court to consider the decision in light of Masterpiece.

National Institute of Family and Life Advocates v. Becerra

This case had less headline appeal than Masterpiece but will likely end up being the more influential in First Amendment jurisprudence. The Court found that California’s Reproductive FACT Act, which forced pro-life pregnancy centers to post disclosures about the state’s abortion services, to be a violation of the pregnancy centers’ free speech rights. The decision was important on several fronts. Most notably, the Court refused to create a lesser standard of First Amendment protection for “professional speech.” The argument was that the state should be given greater power to prevent and compel the speech of professionals (like doctors, lawyers, and mental health counselors) than the usual First Amendment protections would allow. But Justice Clarence Thomas, writing for the majority, criticized such “professional speech” doctrine as being a tool to suppress unpopular ideas or information. The decision may open possible litigation on the issue of so-called reparative therapy bans, which ban professional counselors from talking with minors about their unwanted same-sex sexual attraction.

In his concurrence, Justice Kennedy came down particularly hard on California for its intolerance of the pro-life viewpoint:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

Trump v. Hawaii

This case stems from then-presidential candidate Donald Trump’s promise of a “Muslim ban” during the 2016 presidential campaign. Initially, President Trump signed an order that banned entry in the U.S. from seven predominantly Muslim countries regardless of visa status. However, after getting blocked by the lower courts because of its disproportionate effect on Muslims and because of several anti-Muslim statements from the Trump administration, the president issued a moderated version of the order. This time, the order did not outright ban travel from the seven countries but it did add extra scrutiny before people were allowed to enter the U.S. The final order was also backed by evidence that the nations with restricted access posed legitimate national security risks and were not just chosen based on anti-Muslim animus.

Chief Justice John Roberts pointed out that although five of the seven countries with restricted access were predominantly Muslim, the countries made up only 8% of the world’s Muslim population and were previously designated as posing national security risks. The decision continues the longstanding judicial deference to the Executive Branch on decisions affecting national security. The High Court also renounced the infamous Korematsu v. United States decision, which allowed the executive branch to establish internment camps for Japanese Americans during World War II.

Janus v. AFSCME

This case is not just of interest for its First Amendment jurisprudence but also its close connection to Illinois politics. Illinois was one of the 22 states that allowed unions to charge nonmembers fees for the costs of collective bargaining with employers. Mark Janus, a government social worker from Springfield, filed suit against Illinois arguing that the government requiring him to pay a private organization like a union violated his First Amendment right to free speech and association. By subsidizing the union’s administrative costs, Janus argued that he was being forced by the government to support the union’s political activism. The U.S. Supreme Court agreed in a 5-4 decision. Justice Samuel Alito wrote that the law “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern” like tax increases or collective bargaining rights. One important distinction is that this ruling only applies to public sector unions, not to any in the private sector.

Rowan County v. Lund

One notable case that did not get the U.S. Supreme Court review comes from Rowan County, North Carolina, where the Fourth Circuit Court of Appeal barred the opening prayer at county board meetings. The prayer was led by the elected commissioners, who took turns leading at each meeting. Three residents were offended by the prayers and sued the county. The Fourth Circuit Court of Appeals struck down the prayer policy as violating the Establishment Clause despite clear precedent from the U.S. Supreme Court allowing public prayers in Town of Greece v. Galloway. Unfortunately, the High Court denied cert (i.e., declined to review the lower court decision) on the county’s appeal, and the Fourth Circuit’s decision stands.

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Written by Daniel Horowitz

In case you thought that the potential to flip Justice Kennedy’s seat alone will bring us back to the constitutional promised land, think again. So long as the lower courts are not restrained, we will never return to the Constitution and the principles of the Declaration of Independence.

There is nothing more radical than a lower court granting standing to random plaintiffs to sue against non-coerced public prayer in county government meetings, prayers that have been going on since our founding. Yet a district judge in 2015 and the en banc decision of the radical Fourth Circuit in 2017 barred Rowan County, North Carolina, from opening council sessions with a prayer, similar to what our federal Congress does every day. [Last week], the U.S. Supreme Court refused to grant certiorari to the appeal from Rowan County, despite three years of being under a tyranny that the judges know is unconstitutional.

We shouldn’t even need to get into court precedent to understand our heritage and the true meaning of the Establishment Clause of the First Amendment. But just four years ago, in Town of Greece v. Galloway, Justice Kennedy wrote for the majority that as long as the prayer “comports with our tradition and does not coerce participation by nonadherents,” there is no room for judicial intervention. “To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote in the 2014 case.

The Fourth Circuit rejected precedent because this prayer, in the court’s estimation, was tantamount to coercion because it makes non-religious attendees feel like “outsiders” and “the overall atmosphere was coercive, requiring them to participate so they ‘would not stand out.’” (More on that case and how contrary it is to our founding here.)

For the U.S. Supreme Court not to take the appeal is egregious, especially given that the Sixth Circuit recently ruled the other way, triggering a circuit split. Justice Thomas, as has become his tradition recently, dissented from the decision to deny cert. Thomas noted, “The Fourth Circuit’s decision is both unfaithful to our precedents and ahistorical” and observed, “For as long as this country has had legislative prayer, legislators have led it.” Gorsuch joined the dissent.

There are a number of important observations to be made here in light of the U.S. Supreme Court vacancy, calling into question our ability to change the direction of the judiciary absent broader reforms:

• Aside from the contorted construction of the First Amendment inherent in this ruling, the courts are continuing to grant standing to random plaintiffs (as straw men for the ACLU) who have no justiciable injury-in-fact other than that their sensibilities are offended. The notion that you can even take such a policy to court is absurd and has grown the power of the courts to that of a legislature rather than an individualized adjudicative body. So long as the Left can lodge hundreds of frivolous lawsuits on important abstract policies every day and have the most liberal districts and circuits uphold them, the shift on the U.S. Supreme Court will not bring much relief. The ACLU and its offshoot organizations essentially have unlimited power so long as the U.S. Supreme Court doesn’t change its policies and more aggressively police the lower courts.

• The fact that Roberts knows there will be a more conservative fifth justice added to this wing of the court in the fall and still refused to take up the case is all the more disturbing and demonstrates that we cannot rely on him to overturn these insane lower court rulings expeditiously.

• There is no such thing as a conservative win at the U.S. Supreme Court. Lower court justices will always find hairs to split in any case that is not 100 percent identical and completely ignore precedent, something conservative lower court judges will never do in defiance of liberal U.S. Supreme Court opinions. This is why just hours after the high court affirmed the president’s full power to place conditions on entry, a California judge said that the president must find every single family entering illegally and unite them within 30 days. In another ludicrous ruling on immigration, a New York federal judge said yesterday that the Trump administration cannot promulgate a rule requiring the director of the Office of Refugee Resettlement to personally sign off on the release of illegal immigrant child detainees. Yes, we have no sovereignty, and the president has no powers to even establish some oversight before swamping the country with foreign nationals, who flood into our schools and communities and who often join MS-13. Chief Justice Roberts said that there are no limits to the president’s power to regulate entry into the country, but that will not stop lower courts from granting standing to illegal aliens to sue against every minute piece of policy.

This is all to say that unless the lower courts are dealt with, we will continue to suffer increasingly at the hands of the lower courts even as the membership on the U.S. Supreme Court officially gets better. The bottom line is: We don’t have five Clarence Thomases and will not get them any time soon.

It is incumbent upon conservatives in Congress to create a movement to reorient the power of the lower courts. Rather than the default being that any random court can shut down our heritage and system of governance for years until the U.S. Supreme Court grants relief – if ever – the injunction should automatically be placed on hold until and unless the U.S. Supreme Court takes up the case and affirms the ruling. Granting a congressional-created court supremacy power over the other branches of government is a case of the inmates running the asylum. If the U.S. Supreme Court refuses to act supreme to its own underlings, then why should we respect its supposed “supremacism” over the rest of us?

This article was originally published at ConservativeReview.com

Written by Jonathan S. Tobin

Earlier this month, the U.S. Supreme Court once again affirmed that the so-called “wall of separation” that exists between church and state is not quite the edifice that liberals would like it to be.  In Town of Greece v. Galloway, the court ruled today that a village in upstate New York did not violate the First Amendment in allowing members of clergy to begin town board meetings with prayers, some of which were explicitly sectarian (and usually Christian) rather than ecumenical. The narrow vote along the usual 5-4 conservative/liberal lines is bound to incite many on the left to express fears about the court trying to turn the U.S. into a “Christian nation.”

But in upholding the rights of Greece, N.Y. to have meetings begin with a religious invocation, the court has done no such thing. Rather, it has simply affirmed a long American tradition of beginning public meetings with prayer. Even more to the point, by refusing to be drawn into the question of regulating the content of such prayers, the court has preserved religious liberty rather than constricting it. The decision also provides a timely reminder that for all the talk about separation walls, the main point of the First Amendment is to preserve freedom of religion, not freedom from any mention or contact with faith.

In recent decades, the “separationist” position on church/state interaction has grown more, rather than less, aggressive. In its 1962 Engel v. Vitale decision that banned public school prayers, the court rightly ruled that school districts had no business imposing what were often sectarian prayers on children. Given that students were not free agents who could accept or reject these prayers with impunity, it was clear that the practice could easily be considered an “establishment” of a state religion that is prohibited by the First Amendment. But purely ceremonial affairs such as invocations before legislative proceedings cannot be reasonably interpreted in the same light. Since, as Justice Anthony Kennedy noted in the majority opinion, such prayers go back to the First Congress and have been repeatedly upheld since then, any attempt to overturn these precedents was unwarranted.

It is true that for any member of a minority faith or for atheists, the repeated use of Christian prayers at Greece’s public meetings might be tedious or possibly offensive. But in the absence of a more diverse group of local clergy in this hamlet not far from the shores of Lake Ontario, the town’s choices were between either censoring the prayers of local clergy who were willing to take part or eliminating the practice. Clearly there are many on the left who would have been comfortable with the former and well pleased with the latter.

But what must be acknowledged is that being put in a position where one must listen to the prayers of another faith is not a violation of one’s constitutional rights. A ceremonial prayer, like the words “In God We Trust” on our coinage, does not transform our republic into one with a state religion. So long as those participating in such gestures are not attacking other faiths or those who do not believe in religion, their words are not an establishment of religion or impinge on the freedom of those listening. Adults at a town board meeting are not like schoolchildren in a closed class. They can join in the prayer or not at their own pleasure with no fear of punishment.

At the heart of this issue is the notion that any expression of faith in the public square is a violation of a vast mythical wall that some believe must completely separate religion from state. But while the Founders explicitly and with good reason forbade any one sect, denomination, or faith from being empowered by and identified with the state, they did not intend the First Amendment to be used as a shield to prevent Americans from any contact with religion. To the contrary, they saw faith as having an important role in preserving a democratic nation and a civil society.

There may have been a time when religious minorities and non-believers felt that the identification of the state with the faith of the Christian majority resulted in discriminatory practices that compromised their rights. But what is at stake here are not cases of bias or religious rule but rather the desire of some to be insulated from expressions of faith, and that is a privilege that the First Amendment does not provide them.

As we have seen with the efforts by the Obama administration to restrict the rights of religious believers in the Hobby Lobby case concerning the ObamaCare contraception mandate, there is a not inconsiderable body of opinion that would like to promote a cribbed definition of religious liberty that would be restricted to prayers in houses of worship or private homes. But Americans have always defined religious freedom in a more open and expansive manner that allowed them to practice their faith on the public square rather than only in private. It is that rich legal tradition that the court has upheld in Town of Greece. Though only a narrow majority is defending that principle on the Supreme Court at present, it is one that is well worth preserving.

This article was originally posted at the CommentaryMagazine.com website.