The Supreme Court’s Momentous 2020 Religious Freedom Decisions – Part 2

The Religious Freedom Institute’s recent webinar regarding the significance of this year’s religious freedom decisions from the U.S. Supreme Court, reviewed in a recent article, turned from discussing the individual cases to analyzing their overall significance for the nation and its culture. David Trimble, Vice President for Public Policy, continued his interviews with former federal judge Kenneth Starr, Andrew Graham of the First Liberty Institute, and Richard W. Garnett of the University of Notre Dame.

Trimble asked about the legal, moral, and cultural implications of the religious freedom decisions of the 2019-2020 term. As to the legal implications, Garnett said that the Bostock decision will lead to calls to include sexual orientation and gender identity antidiscrimination (SOGI) categories in all federal funding and licensing, prohibiting discrimination against homosexual behavior and transgenderism by all federal contractors and grantees. In addition to increased pressure to pass the Proposed Equality Act, it will also increase pressure to pass the so-called Do No Harm Act, which would prohibit religious freedom claims against the application of any law concerning civil rights or abortion, or in any case in which it would “harm” a third party. All of this would severely impact not only religious individuals in the public square, but also religious institutions. Their many charitable functions, such as “foster care placement, adoption, combatting human trafficking, refugee resettlement” would be hobbled or made impossible by requiring complicity in homosexuality and transgenderism. There would also be a major impact on Christian schools, which would be pressured to give up their codes of sexual morality. He found it ironic that the Espinoza case, which increases the ability of religious schools to maintain their religious standards, will now increase the pressure for aid to such schools to have “strings attached” which will violate their beliefs. He gave the example of dormitories at Christian colleges separated on the basis of sex (which Biblically and to common sense means biological sex).

It should be added to Garnett’s comments that any freedom, and certainly religious freedom, is really meaningless if it only exists if no one is offended. Yet introducing an exception to religious freedom in cases where someone claims “harm” does exactly that. In the current cultural controversy over traditional sexual morality, the actual “harm” is likely to be personal offense, not any material harm. It is an ideal exception to religious freedom for those whose true objection to religious freedom is that religious doctrine and practice condemns their inclinations and behavior. As was noted in an earlier article, with any right (such as the right to religious freedom) the state must “protect the right, and bear the costs.” Otherwise the right does not exist. Religious freedom is meaningless if it can be set aside when someone is pained.

Trimble asked Starr if Justice Gorsuch’s reasoning in the Bostock decision (which read SOGI categories into employment discrimination law) was not faithful to textualism (looking at the words of a statute, rather than policy implications). Starr responded “absolutely not. It is the most tortured opinion I believe I have ever read with respect to statutory interpretation.” He said that Gorsuch’s opinion is not textualist, because it does not interpret according to the “ordinary public meaning of the law.” He said that the ordinary public meaning of the word “sex” is different from the ordinary public meaning of sexual orientation or gender identity. He also noted that in the decades since 1964 “thirty appellate judges rejected the idea the sex meant sexual orientation.” He pointed to Justice Kanavaugh’s dissent, which said adding SOGI categories is the prerogative of Congress, while the Bostock decision simply ends the conversation. He further noted Justice Alito’s opinion that “over one hundred federal statutes use the term ‘sex,’” and the meaning of these statutes is therefore affected. Starr pointed to a statement of Antonin Scalia, that “there is a difference between textualism and literalism.” Starr gave the example of a law that prohibits “vehicles” in a park. No one would assume that this includes baby carriages, although they are a kind of vehicle. Finally, he said, “this opinion will not stand in terms of its methodology.” While no “serious scholar” is praising the reasoning, the “result is being praised lavishly by the culture.”

Trimble asked if the Bostock decision establishes “a new protected class.” Starr responded that “in effect, it does, but not for constitutional purposes.” In all strictness, the decision has a narrow focus on part of one federal statute. The decision explicitly did not address separate rest rooms or women’s athletics. However, what the decision “has unleashed is now a wild, furious dash to the courthouse, invoking many different statutes.” In response to a question about whether Justice Alito was correct in saying the decision amounted to “legislation,” Graham said “absolutely.” The decision violated the separation of powers, usurping Congressional authority, and really was made in response to cultural pressure demanding that SOGI categories be included in civil rights legislation. Starr quoted the text of Justice Alito’s dissent that “this is a pirate ship sailing under the flag of textualism, but it is not a textualist vessel at all.”

Trimble asked about the impact of this year’s religious freedom decisions over time. Graham responded that “there will be a lot of litigation for a long time.” It will be necessary “to litigate the scope of RFRA’s protections, Justice Gorsuch refers to it as a ‘superstatute’” in the text of the Bostock decision. There will continue to be litigation on the scope of the ministerial exception, as well as “the scope of the religious employer exemptions in Title VII.” But he said the concurring opinions of justices Thomas and Gorsuch in the Espinoza case gives hope that religious freedom will become a more important consideration for the court. They both complained that religious freedom is on the “lowest rung” of rights guaranteed by the Bill of Rights. He noted with particular approval Gorsuch’s concurrence in the Espinoza case that “the right to be religious without the right to do religious things would hardly amount to a right at all.”

Asked “where will we be in five years,” Starr believes “we will still have a very fine Supreme Court dedicated to principles of religious liberty.” He said that the religious freedom cases discussed were “enormous victories.” The Guadalupe case was “deeply rooted in the autonomy of religious institutions.” He noted too that in the Hosanna Tabor case the court unanimously rejected the idea that religious organizations have no more rights than any other organization. Following the upcoming election, however, there may be “a very hostile to religious liberty EEOC, a very hostile to religious liberty Solicitor General’s Office and Justice Department.” Nevertheless, he thinks that “the courts … time after time continue to get it right.”

Trimble concluded that “as a nation, in community, we must emphasize equality under the law for all citizens, but we must equally affirm that fundamental freedoms are not expendable. Law alone cannot protect the most fundamental and inalienable rights granted to individuals, and enshrined in the First Amendment. This is something we must agree to do together.”

This writer would certainly agree that more is need to sustain religious freedom than merely the words of the law. There are positive developments in the Supreme Court’s jurisprudence in the last decade, perhaps starting with the very elementary recognition of religious freedom in the Hosanna Tabor decision. But apart from Hosanna Tabor, these depended on having sufficient conservative justices on the court, legal service organizations skilled at defending religious freedom against an equally skilled and determined opposition, and the continuing commitment of at least part of the public to a robust doctrine of religious freedom.

But if social liberalism (meaning principally the acceptance of the sexual revolution) continues to advance, especially among the young and the middle class, continued success against the perennial pressure of secularist and sexual identity groups is dubious. Professional associations of science and medicine will be cajoled into authoritative pronouncements in favor of socially liberal causes, as is already happening.  As was emphasized by the panel’s discussion, freedom is being taken away in the name of freedom. By guaranteeing more and more civil rights, more and more decisions in life are mandated by the state, rather than left to individuals and their consciences. For ordinary believers, who may find their religious commitments made illegal and denounced as irrational and immoral, it is important that they be resolved to obey divine precepts regardless of what the future may hold.