2022’s Docket Issued Wins for Life and Liberty


Hands held together in prayer in front of the Capitol building and Supreme Court in Washington, D.C.
Hands held together in prayer in front of the Capitol building and Supreme Court in Washington, D.C. (photo: lazyllama / Shutterstock)

Respect for religious freedom protects the Church’s autonomy and our right to freely practice the faith. It also creates the space in which we can evangelize freed from government interference or coercion. As threats to religious freedom increase, a look at the year in review reinforces the importance of remaining vigilant in the defense of religious liberty. 

2022 will forever be remembered as the year in which the Supreme Court restored our constitutional order in Dobbs v. Jackson Women’s Health. The Dobbs’ decision, to the benefit of countless pregnant women and their unborn children, corrected the judicial overreach inflicted on the country by the erroneous 1973 Roe v. Wade decision. However, this year the Court also safeguarded religious exercise and free expression. Three decisions are worth highlighting.  

In Shurtleff v. Boston, the Court issued a resounding defense of free speech. The case vindicated the right of a Christian group to fly a flag in front of Boston City Hall — something that officials had outrageously banned them from doing. The Supreme Court unanimously ruled against the city of Boston. Justice Stephen Breyer, who retired at the end of last term, issued the majority opinion. “When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint.” A simple rule that, in an age of cancel culture, is often ignored.   

The Court in Carson v. Makin ruled that the state of Maine violated the Constitution by preventing families from using state aid to send children to schools that provide what it calls “sectarian” instruction. “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” explained Chief Justice John Roberts for the 6-3 majority. In response to Maine’s claim that it excludes schools not because of the religious identity of the schools but based on the religious use of public funds, Roberts responded forcefully that “any status-use distinction lacks a meaningful application not only in theory, but in practice as well.”  The Court’s decision clears away discriminatory barriers that have limited robust school-choice programs. State lawmakers across the country should take the opportunity to allow parents to choose religious schools that are the best fit for their children’s education. 

Finally, Kennedy v. Bremerton School District affirmed a public high-school football coach’s right to pray during his personal time after games. “Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” wrote Justice Neil Gorsuch for the court’s 6-3 majority. Kennedy’s key point is that what a teacher or coach says that is unrelated to his or her duties counts as protected speech. Crucially, the Court also explained that the Free Exercise and Free Speech Clauses of the First Amendment work in tandem. “That the First Amendment doubly protects religious speech is no accident,” noted Gorsuch. “It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.” Responding to a common misunderstanding of school officials, Gorsuch further explained that an Establishment Clause violation does not “automatically follow whenever a public school or other government entity ‘fails to censor’ private religious speech.” 

The Court began its latest term this fall. On the docket is an important case involving the freedom to speak consistent with conscience. The case, 303 Creative v. Elenis, was brought by Lorie Smith, a Christian website designer in Colorado who wants to expand her business to create custom wedding websites. As Smith does not want to be forced to create websites for same-sex weddings, she filed a preenforcement challenge in federal court to the Colorado Anti-Discrimination Act (CADA). CADA bars businesses that are open to the public from discriminating against people based on sexual orientation or announcing an intent to do so. Smith claims that enforcing CADA will violate her free-speech rights under the First Amendment. 

The constitutionality of CADA was challenged in the Supreme Court by Jack Phillips, a Colorado baker and owner of Masterpiece Cakeshop, but the Court ruled in Phillips’ favor based on the overwhelming hostility toward religion shown to him by the state’s civil-rights commission. It’s important to note that although Smith raised claims under the First Amendment’s Free Exercise Clause, the Court has limited its review to her free-speech claims. A decision by the Court in 303 Creative will likely come at the end of June. 

CADA is not the only threat to those with traditional views on marriage. The Respect for Marriage Act is now law, despite serious concerns over the act’s failure to respect the sincerely held religious and moral beliefs of many Americans that marriage is between one man and one woman. A victory for Smith will make clear that, at least when it comes to wedding vendors who provide creative services, the First Amendment’s free-speech guarantee must be respected.

Key cases have also been resolved in favor of religious freedom in our lower courts of appeals. For example, both the 8th Circuit and the 5th Circuit Courts of Appeals have struck down the Biden administration’s transgender mandate. Both courts ruled that religious groups could not be required to perform procedures that violate their beliefs. The mandate would have revised Section 1557 of the Affordable Care Act to add “sexual orientation and gender identity” and “reproductive health care services,” including “pregnancy termination,” to existing “protections against discrimination on the basis of sex.” The Biden mandate also sought to erase Trump-era conscience protections that sought to allow medical professionals to opt out of performing procedures against their beliefs. The deadline for the administration to appeal the 5th Circuit decision passed Nov. 25. The administration may still seek review by the Supreme Court of the case decided by the 8th Circuit. 

While this year has brought incredible victories in defense of religious freedom in our country, threats to America’s first freedom continue. Catholics and all people of faith must be aware of what is going on and at the ready to defend religious liberty.

Andrea Picciotti-Bayer is a civil-rights attorney, the director of the Conscience Project and an analyst for EWTN News.