Religious Freedom Gets Its Day in Court
YEAR IN REVIEW
Religious freedom in the United States is being threatened as never before. This year the Supreme Court vindicated religious freedom in crucial cases, but there were some disappointments. With more key decisions in the pipeline, and the prospect of more assaults on religious freedom sanctioned or sponsored by the Biden administration, this is a good opportunity to look back at the Supreme Court’s record in 2021.
Worship and Bible Study
One of the most troubling manifestations of government overreach since the beginning of the coronavirus pandemic has been worship-targeting. While it took the Supreme Court until the fall of 2020 to de-clare unconstitutional the restrictions on worship put in place by disgraced former New York Gov. Andrew Cuomo, this year the Court acted faster. It struck down worship restrictions in California and also stepped in this past April to protect Californians’ right to in-home Bible study. In that case, Tandon v. Newsom, the Court set forth an important principle: Government regulations aren’t “neutral” toward religious exercise “whenever they treat any comparable secular activity more favorably than religious exercise.”
Giving religious exercise a “most favored nation status” is consistent with the original meaning of the Constitution’s protection of the free exercise of religion. Crucially, it will help people of faith fight the creeping progressive consensus that religious activity is dangerous to society and should be limited as much as possible.
Rights of conscience and religious freedom are still being tested by the response of certain government officials to the challenges of the pandemic. Although most states respect religious objections to the COVID vaccine, there are a few outliers when it comes to mandates for health-care workers.
Disappointingly, the Supreme Court has twice declined a request by health-care workers for emergency relief from vaccine mandates in New York and Maine — two states that lack religious exemptions. The health-care professionals from both states claim to have sincerely held religious objections to abortion in any form. They say they reject specific vaccines on religious grounds because they make use of abortion-derived fetal cell lines in their production or testing.
Justice Neil Gorsuch wrote lengthy dissents in both cases. He specifically noted that the record in the New York case “practically exudes suspicion of those who hold unpopular religious beliefs.” Although Andrew Cuomo appeared to have learned his lesson after the Court struck down his order discriminating against religious worship and promised health-care workers religious exemptions from his state’s vaccine mandate, his successor, Kathy Hochul, reversed his decision. Religious exemptions would no longer be available because there was no “sanctioned religious exemption from any organized religion.”
Hochul even remarked that “everybody from the Pope on down is encouraging people to get vaccinated.” A large number of Americans who consider themselves religious have taken the COVID-19 vaccine — I am among them. Even so, the Constitution still provides protection for the religious beliefs of objectors. And for naysayers like Gov. Hochul, it’s important to note that being exempt from a vaccine mandate doesn’t mean that health-care workers are not obliged to take other effective measures to mitigate the spread of the coronavirus to their patients or from contracting the virus themselves.
In a unanimous judgment this summer, the Supreme Court ruled that Philadelphia’s refusal to renew its contract with the Archdiocese of Philadelphia’s foster-care placement agency unless it agreed to certify same-sex couples as foster parents violated the free-exercise guarantee in the First Amendment. Fulton v. Philadelphia was an important victory for religious freedom and a particularly big win for Catholics unwilling to betray Church teaching as a precondition for serving the needy.
The Court’s opinion, written by Chief Justice John Roberts, traced the long-standing tradition of the Catholic Church in serving underprivileged children in America. Roberts also explained that since the city had a “system of individual exemptions” available at the “sole discretion” of the city’s commissioner of the Department of Health and Human Services, its actions were not generally applicable and were thus subject to the “most rigorous of scrutiny.”
Following this exacting review meant that the Supreme Court must concern itself not with whether the city has “a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” To their credit, all nine justices on the Court agreed that the city’s asserted interests were “insufficient.”
Justice Samuel Alito, joined by Justices Clarence Thomas and Gorsuch, concurred with the Court’s judgment but wanted the Court to go further and revisit its 1990 decision in Employment Division v. Smith. The latter held that the First Amendment’s protection of the free exercise of religion does not allow a person to use a religious motivation as a reason not to obey laws that are neutral and generally applicable.
Alito wrote that Smith was ripe for reexamination: “Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection.” Justices Amy Coney Barrett and Brett Kavanaugh indicated in another concurring opinion that they were similarly open to reassessing Smith.
Freedom in Higher Education
In an 8-1 decision in early March, the Supreme Court struck a blow against the tyranny of campus speech codes. Chike Uzuegbunam was enrolled at Georgia Gwinnett College, a public college 30 miles outside of Atlanta. He wanted to talk about his Christian faith with other students and hand out religious literature in one of the college’s outdoor plazas but was frustrated by the school’s limited “free-speech-expression areas” policy. He went to court, arguing that the policies violated the free speech and free exercise of religious protections of the First Amendment.
Because Gwinnett had since retracted the offending policies, the Court had to decide whether Uzuegbunam’s request for nominal damages was sufficient to keep his case in court.
Georgia-born Justice Thomas wrote for the majority in ruling in favor of Uzuegbunam. Thomas, an originalist, pointed to the historical line of cases establishing that “nominal damages provided redressability” and rejected “the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff.”
Clergy at Death Row
John Ramirez, a death-row inmate in Texas, has one last request: He wants his spiritual adviser, a Baptist pastor, to “lay hands on him” and recite prayers during the execution. Prison officials have refused permission. Ramirez’s lawyers argue that Texas’ “method of execution” — which prevents his pastor from physically touching him and praying vocally during his execution by lethal injection — violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the free-exercise guarantee of the First Amendment.
In response, Texas makes several compelling points, including a defense of its execution protocols as balancing multiple interests, including “uniformity in executions to reduce the opportunity for errors, the safety and privacy of execution personnel, the rights of the inmate, and closure for the victim’s family and the community.”
The answer is unclear. Perhaps that is why the Supreme Court made the extraordinary decision to request full and expedited briefing and hold oral argument on Nov. 8. The decision is expected imminently.
School Choice and Parental Rights
The Supreme Court is reviewing Carson v. Makin, a case brought by parents in Maine who live in areas without a public secondary school but who are being banned by the state from sending them to religious schools because its tuition-assistance program excludes any school considered to be “sectarian.”
Two years ago, the Supreme Court ruled that Montana violated the First Amendment by excluding religious schools from a state-sponsored tuition-assistance program.
During the Dec. 8 oral argument, a clear majority of the justices appeared to think that the Maine “sectarian rule” was not all that different from the Montana law. A decision is likely to come at the end of June, when the Court finishes its term.
Religious Freedom Matters
Looking back at these cases, it’s increasingly clear that we’re facing an overwhelming cultural force that is pulling our society away from its moral and religious roots. As faithful Catholics and Americans, each one of us has an important role to play in preserving and protecting religious freedom. Working with Joan Desmond, senior editor at the Register, we created Religious Freedom Matters — a podcast to help you better understand the challenges we face, inspire you to defend religious freedom and strengthen the light of the Gospel in your own homes and communities. Check out our podcast episodes and stay tuned for more.