Will the Supreme Court Turn against Religious Liberty – Part 2

The second panel of the Alliance Defending Freedom presentation discussed in the previous article of this title concerned the possibility that the Supreme Court is changing, and possibly radically, its direction on religious liberty issues. This is believed to be the result of the death of Associate Justice Antonin Scalia and the probable appointment of two or three new justices to the Supreme Court in the coming administration. Kristen Waggoner, Senior Counsel and Senior Vice President of ADF, Staffan N. Johnson of the Winston & Strawn law firm, and Louise Melling, Deputy Legal Director and Director of the Center for Liberty of the American Civil Liberties Union, discussed this issue.

Rich Wolf of USA Today moderated the panel and began by noting that since the death of Justice Scalia the Supreme Court declined to hear possibly its most important religious liberty case on appeal, Storman’s vs. Wiesman, concerning Storman’s pharmacy in the state of Washington. The pharmacy has declined to stock abortion inducing drugs. Wolf noted the comment of Associate Justice Samuel Alito in dissenting from the decision not to hear the case, that “if this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

Waggoner said that on religious liberty, the nation and the courts are now “in pitched battle.” She said that the question is whether we will “permit the space” for those persons with convictions to “freely practice their religion, and be in the marketplace and earn a livelihood.” Will people have to give up their livelihoods in order to remain true to their faith? (as in the cases of the photographer Elaine Hugeunin in New Mexico and the florist Barronelle Stutzman in Washington state, who declined services contributing to homosexual behavior). Waggoner said that religious freedom gives people the freedom to search for and live out the meaning and value of life; it is the “external benchmark” as to what believers can and cannot do. Charitable work is part of this life conducted within religious boundaries. She said that religious freedom is empirically associated with prosperity and freedom. It is beneficial to civil liberties, she said. There is also an inconsistency, she maintained, in many people supporting the idea of conscientious objection to general laws based on moral principle in general, but rejecting it in areas of marriage and sexuality. This indicates people see the need for protecting conscience only on issues in which they agree with the morality which is objecting to the law. There is a great danger, she said, that the Supreme Court will “force ideological conformity” on sexual issues, effectively saying that sexual identity and behavior is most important in reaching justice, rather than religious commitments, which are most important in the lives of many Americans.

Supreme Court decisions in recent years have been supportive of “choice and tolerance” in religious issues. Such decisions include that concerning the Town of Greece vs. Galloway (allowing prayer at municipal meetings), Hosanna Tabor vs. the Equal Employment Opportunity Commission , which determined that religious bodies had a constitutional right to hire and fire clergy independent of antidiscrimination requirements , and Burwell vs. Hobby Lobby, which established closely held private corporations had religious freedom against contrary law and public policy under the Religious Freedom Restoration Act. All of these decisions exhibited the court’s concern for religious liberty. There is now great concern that the court will shift against religious liberty. Waggoner pointed out that in the Storman’s case, the State of Washington was clear that it was going after religious objectors, endeavoring to require them to violate their consciences. It might be added that this objective is dubious even under the Employment Division vs. Smith decision (1990), which denies religious freedom against law held to be “neutral and generally applicable.” Yet the State of Washington seems not to have been neutral in dealing with religious pharmacists. Waggoner said that the ninth justice to be appointed to the Supreme Court may decide the current conflict over religious liberty. A new liberal justice replacing Justice Scalia could well decide cases which will result in sending believers to jail and banishing them from entire professions. In the next year, there may be a “real shift” on the Supreme Court.

Johnson said that the glass is either “half empty or full.” The court has held (in the Smith decision) that “neutral, generally applicable law” cannot violate the First Amendment’s free exercise guarantee. But since then, the court has decided cases on particular religious liberty issues in favor of free exercise, although the Hobby Lobby was delivered by a divided court. The least restrictive means test, used both before the Smith decision and also under the Religious Freedom Restoration Act, mandates that however strong the interest of the government is, it includes accommodating believers. Johnson noted George Washington’s letter to Quakers in 1789, in which he maintained that the government should carefully attend to the “conscientious scruples of all men,” and that “the laws should be always extensively accommodated to them,” as is possible while achieving “the protection [of] the essential interests of the nation.” Washington assumed that religion is consistent with the public good. Historically, Johnson claimed, the recognition that the government “didn’t have legitimate authority over religious exercise,” led to the recognition that it did not “have absolute authority over everything else too.”

Melling said that these are changing times, indeed, moments of great change. She pointed to religious objections to the civil rights movement. She noted that Peggy Park of South Carolina claimed free exercise to avoid serving black customers, but the court said state interest in racial equality overrode religious liberty. No accommodation was given for religious schools objecting to equal pay requirements for women. The purpose of overriding religious liberty in civil rights cases is to make equality “real,” she said, but she does think that the court is listening to both sides. But how this could be if the court decides civil rights on sexual matters in statutory law, which is not mentioned in the Constitution, overrides any constitutional concern for the free exercise of religion, is not clear.

In support of the idea that there may soon be a radical shift against religious liberty, Johnson noted that Professor Mark Tushnet of Harvard Law School says the Left doesn’t need Justice Anthony Kennedy anymore (whose vote was decisive in finding a constitutional right to homosexual behavior and writing those decisions). Melling added that Masterpiece Cakeshop in Colorado, which has so far lost in court in a case involving declining to provide a cake for a same-sex wedding, would lose under the Smith decision. But Waggoner said that Justice Kennedy has said that there is a right to live out religious beliefs. It should be added, however, that while there is some indication of this concern in the Lawrence vs. Texas decision, which voided state sodomy laws, in the main, Kennedy has mentioned only the right to believe and express belief, not the free exercise of religion in matters concerning homosexuality. Specifically, the Lawrence decision says that while religious beliefs are not “trivial concerns” for believers and “determine the course of their lives,” their beliefs cannot be a motivation in law, and so it is not at all clear that the morality those beliefs require can be protected in law. Waggoner noted that Masterpiece Cakeshop politely declined to do a same-sex marriage cake, but the civil rights commissioner in Colorado said Masterpiece’s views were “despicable.” She pointed out that in this and other similar cases, believers are being required to create custom work against their will.

Johnson observed that the Smith decision resulted in a huge outcry. Our legal framework needs to respect individual conscientious objection, he maintained, and held that the burdens to the government in protecting society are less than the cost to society if the merchant goes out of business. The new concept of “dignitary harm,” which says that the personhood of customers is harmed if goods and services are declined because of moral objections to their behavior, rules out conscientious objection. Melling said the Supreme Court, through Justice Kennedy, recognizes both the honorable views of conscientious objectors and the dignitary harm of customers. It seems to this writer, however, that here the Supreme Court is being incoherent. If people are truly harmed, in the sense of having injustice done to them, by moral objections to their behavior, then the moral objections cannot be honorable, but are, as the Colorado commissioner said, “despicable.”

Wolf noted that the Supreme Court denied appeal in the Huguenin case, indicating a court tilting against religious liberty, and that the power of LGBT issue makes decisions about conscientious objection against homosexual behavior difficult. But Waggoner said that the court cannot keep dodging the pressing issue of conscientious objection on sexual orientation and transgender issues. Melling predicted that the court will not take the Masterpiece case as the lower courts are consistently finding against religious liberty on sexual orientation and gender identity issues, although given the contentiousness of the issue, the court will eventually take such a case.

A questioner asked why religious freedom is different from free speech. Why would there not be “dignitary harm” in the case of free speech? Melling said that the difference is because of public accommodation considerations. With public accommodation, goods are being delivered to the general public, rather than merchants expressing their own views. Waggoner responded that free expression is a basic fundamental right – the ACLU view of the law would force a printer to print against his will. She held that “dignitary harm is not well founded in law.” It might also be added that “dignitary harm” makes nonsense of the idea of freedom, which means nothing if it is set aside when someone else is offended. It is also likely that it will be found only when liberal sensibilities are offended, as has already happened in Colorado where a court accepted the ACLU’s claim that a homosexual baker who declined a request to display an antihomosexual message on baked goods by a religious customer was not being sufficiently “offensive.”

Waggoner said that emotion is not a “trump card” in these cases concerning the conscientious objection of merchants, and that the civil rights analogy used against conscientious objection needs to be addressed. Civil rights, she said, is not comparable to religious freedom. Does the law force believers to violate what their consciences dictate and stigmatize them?, she asked. Melling responded that there is a matter of personal harm. Setting norms about equality is the most important consideration at the present time, she said. It is a “compelling state interest.” Yet it should be asked, how compelling can it be, given that religious freedom is the first freedom mentioned in the Constitution, and being the freedom which pertains to what is ultimately right and wrong, it is the foundation of other freedoms? Sexual rights, on the other hand, are nowhere mentioned in the Constitution, they have been read into the Constitution by the Supreme Court.

Johnson claimed that a society that prioritizes religious freedom will get a high degree of both religious and other freedoms. But Melling said that individuals have more freedom in the American legal tradition than institutions. She mentioned that the ACLU has supported conscientious objections for pharmacists, but not pharmacies. She said that institutions have a greater capacity to impose harm.

But despite this concern for individual liberty, Waggoner said that government is now getting involved in private matters. Sexual orientation and gender identity (SOGI) antidiscrimination laws are being made to be imposed on religious organizations and churches. This could shut down Catholic schools, she said.

A member of the audience asserted in a question and answer time that in the contemporary struggle for liberty of conscience, religious people “will not roll over.” This is really the bottom line for Christians. As this writer has argued repeatedly before, the very logic orthodox Christianity is that it remains true, regardless of changes for the better or worse in the wider world, and the very logic of liberty of conscience is that an evil action can never be taken regardless of the penalty. Religious freedom did not come into existence so people could have the religious activities that they find appealing, but to accommodate hard religious requirements for which people were willing to sacrifice their life and liberty. Traditional Christians must be willing to do the same in the coming years, to show society’s need for religious freedom and liberty of conscience. The cultural left in America, to which the courts respond, may be unyielding in its requirements that people be involved with sin, but if believers refuse involvement at any cost, there may eventually be accommodation. Stranger things have happened. Slavery is gone, and communism has fallen. But we know that God expects faithfulness for as long as we are required to sin by violating Biblical faith and morals, and that He wins in the end.