Bob Egelko has a long piece in the San Francisco Chronicle that includes the comments of former California Supreme Court justices on recent religion rulings by the U.S. Supreme Court.
The article reports that retired Justice Kathryn Werdegar believes “[t]he constitutional separation of church and state has become ‘very fragile’ ” and is “ ‘collapsing.’ ”
“ ‘It’s worrisome,’ said [retired Chief Justice] Tani Cantil-Sakauye, . . . who said she agrees with Werdegar’s concerns.”
“[F]ormer Justice Ming Chin, said those fears seem somewhat overstated — ‘I don’t agree that it’s about to collapse,’ he said.”
But Chin was critical of the U.S. Supreme Court’s opinion in Kennedy v. Bremerton School District (2022) 142 S.Ct. 2407, which held a public high school coach could pray, often joined by players, in the middle of a football field after a game because, the Court said, the coach was engaging in “private speech, not government speech.”
“The coach’s actions ‘don’t sound private and confidential to me,’ said Chin. . . . ‘What’s a kid to do? . . . If he wants to play quarterback, go and pray.’ ”
Egelko notes Werdegar’s opinion for a divided court in Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, holding a state anti-discrimination law could constitutionally apply to bar a landlord from refusing to rent to an unmarried couple based on personal religious beliefs. He writes that the rationale of Werdegar’s Smith opinion “would most likely be rejected by today’s U.S. Supreme Court majority, which has broadened its definition of religious liberty and allowed adherents — particularly conservative Christians — to claim exemptions from state discrimination laws.” “ ‘We were relying on United States Supreme Court precedents’ in [Smith], and ‘they will be undermining their own’ by further weakening the constitutional barrier between church and state, Werdegar told the Chronicle.”
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