The Religious Freedom Institute reviewed recent Supreme Court cases concerning religious freedom in a webinar on September 10. David Trimble, Vice President for Public Policy moderated a panel including Kenneth Starr, former judge of the District of Columbia Circuit Court, Andrew Graham, Executive Director for Policy and Education of First Liberty Institute, and Richard W. Garnett, Professor of Law at the University of Notre Dame.
Trimble began by noting that the 2019-2020 term of the U.S. Supreme Court was “an unprecedented term for the U.S. Supreme Court, this was certainly true in relation to cases decided on the basis of First Amendment protections, and other cases impacting fundamental principles of religious freedom.” He asked “why now.” He wanted to examine “where we are, not only legally, but culturally, as we consider the place of religious freedom in America.”
Graham began by saying that “certain rights, including religious freedom, are fundamental, universal, natural rights.” He maintained that although the First Amendment is important in defending religious freedom, we must always be “cognizant” of the fact that religious freedom is a “pre-political right,” one that all human beings have regardless of whether it is recognized by the state or not. It is rooted in how we are constituted as human beings. Garnett commented that people are entitled to religious freedom because people naturally seek truth and transcendent reality. But he said that “everyone has a stake” in religious freedom, whether they “religious or not.” He said that a government that respects religious freedom “is more likely to respect other fundamental and foundational human freedoms.”
Among the cases decided in the 2019-2020 term was the Espinoza vs. Montana case. Montana had funded private secular schools, but not religious ones. This was based on a clause in the Montana constitution, typical of that in many states, called a “Blaine Amendment,” prohibiting aid to religious schools. The Supreme Court, by a vote of 5-4 decided that this violated the free exercise clause of the First Amendment. Garnett noted that “this is the first time those Blaine amendments have been challenged constitutionally.” He pointed out that Blaine Amendments were based on anti-Catholic hostility in nineteenth century America. However, Chief Justice Roberts’ majority opinion did not depend on that, but on the fact of discrimination against religious schools. Starr noted the court’s condemnation of hostility in a case involving race relations, but not in defense of religious schools. Starr further noted that while this decision in favor of religious freedom is new, concern for religious freedom is “deeply rooted in Western thought, literally for centuries.” Further, religious freedom has “powerful practical value, as shown by social science.” Countries with strong religious freedom regimes show superior social development in freedom, education, and health, Starr said.
Another important religious freedom case decided this term was Our Lady of Guadalupe School vs. Morrisey-Berru, which concerned the right of a Catholic school to dismiss a teacher who was not a practicing Catholic. Garnett said that this case was “the other shoe dropping” to the earlier landmark Hosanna Tabor decision (2012), which ruled that the state cannot regulate the appointment or dismissal of religious ministers. This was held necessary “to protect the right of religious institutions to choose their own teachings.” In the Guadalupe case, the Supreme Court ruled against the effort of the Ninth Circuit Court to apply Hosanna Tabor only to clergy or teachers with extensive religious training. Instead, it applies more generally to teachers at religious schools. He said that the decision reflects what “separation of church and state” ought to mean. It was not intended mean “no religion in the public square,” but that religious and political authority are separate, and political authority “ought not to interfere with the appropriate jurisdiction and domain of religious authority.”
Garnett then discussed the case of Little Sisters of the Poor vs. Commonwealth of Pennsylvania. Garnett said he was gratified that, as was true of the Guadalupe case, this decision was made by a 7-2 majority (which included liberal-leaning justices Stephen Breyer and Elena Kagan). Originally the conflict over the Little Sisters, and that of many other religious institutions who objected the contraceptive/abortifacient mandate imposed by the Obama Administration, was the nonprofit side of the controversy over religious conscientious objection to socially liberal mandates. The Hobby Lobby decision in 2014 determined that closely held for-profit corporations could not be required to comply with government mandates that violate their religious conscience, under the provisions of the Religious Freedom Restoration Act of 1993 (RFRA).
The Little Sisters’ case was never really decided, due to the death of Justice Antonin Scalia. The Trump Administration provided an exemption from the mandate for religious organizations. The Supreme Court ruled in the Little Sisters’ favor, but not on the basis of RFRA. However, a concurring opinion, that of justices Alito and Gorsuch, said that RFRA requires that religious organizations be exempt from government mandates that violate their religious convictions.
Garnett noted that justices Breyer and Kagan not only joined the majority Guadalupe and Little Sisters cases this term, but also in the Trinity Lutheran of Columbia, Mo. vs. Comer case in 2017, which said a church could not be denied a government grant merely because it was a religious organization. This, he believes, is a welcome development, showing that religious freedom has at least some support in both of the warring camps of conservative and liberal jurisprudence.
Garnett was asked about the recent Bostock vs. Clayton County, Georgia case, in which the Supreme Court declared that sexual orientation and gender identity were included in Title VII of the Civil Rights Act of 1964. He said that for many years it has been claimed that the word “sex” in Title VII should include sexual orientation and gender identity by interpreting the term “broadly.” But courts declined to give “sex” this interpretation, because Title VII does not mention sexual orientation. Justice Gorsuch, who wrote the majority opinion, interpreted “sex” to mean anything related to sex, and thus read SOGI categories into Title VII. But Garnett was especially impressed with Justice Kavanaugh’s dissent, which was that “to be faithful to the text is to be faithful to the ordinary meaning of the terms that the statute uses.” Garnett said that the case in itself does not involve religious freedom, but it has “religious freedom implications.”
Trimble then ask Starr whether or not the remarkable number of cases that came before the court concerning religious freedom in its 2019-2020 term represents “a systemic or systematic failure of religious freedom, i.e., the ideal itself and the institutions that support the ideal.” Is there, he asked “a rejection of religious freedom, as core to the common good.” Starr responded that “there is an enormous body of case law being generated, because the pressures on religious liberty are legion. Not only are they legion now they are growing.” This makes the need for scholars to defend religious liberty and legal service organizations to defend religious liberty vital. Supporters of religious liberty “should be quite worried at what’s happening,” he said. He noted that RFRA was passed with nearly unanimous support in 1993. RFRA applies strict scrutiny (requiring a compelling state interest exercised in the least restrictive way) to infringe on religious freedom. However, that consensus for religious freedom has collapsed due to cultural pressures involving “tremendous hostility to religion in all its forms.” But there is some consensus on the court in favor of religious freedom. Starr noted in particular the 7-2 majorities of this year’s decisions in favor of religious freedom.
The panel’s discussion of the current cultural context of the 2019-2020 religious freedom decisions, and their impact for the future, will be reviewed in a subsequent article.
(See part 2 here.)
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