Supreme Court 2021: The Aftermath of Landmark Victories Keeps Advocates Awake

COMMENTARY: Progressive politicians undermine strides in securing religious freedom.

United States Supreme Court building in Washington, D.C.
United States Supreme Court building in Washington, D.C. (photo: Unsplash)

The Supreme Court began its 2021 term Oct. 4, and we can be fairly confident that its current majority will continue to defend religious liberty.  

What happens after they rule in a religion case, however, is another story. There are elected officials all over America who are ready to sabotage any Supreme Court ruling that threatens progressive orthodoxy. For these activists, any religious belief that contradicts their agenda is illegitimate and any decision protecting such a belief must be circumvented.  

Consider the seemingly never-ending quest of the Little Sisters of the Poor to escape the Affordable Care Act’s contraceptive mandate. These nuns who serve the elderly poor — won what appeared to be a historic victory in the Supreme Court in 2016, followed by federal rules enacted by the Trump administration exempting them and other non-profit religious groups from the mandate. A few progressive state attorneys general could not stomach the idea of religious and moral exemptions from the mandate. They challenged the exemption rules. 

Last year the Supreme Court ruled in favor of the federal government’s authority to exempt objectors. But Justice Samuel Alito noticed that the court’s majority gave a certain freedom of maneuver by not addressing whether the new exemption was compelled by the Religious Freedom Restoration Act. 

“This will prolong the legal battle in which the Little Sisters have now been engaged for seven years, he said, even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.” 

And don’t forget Jack Phillips, Christian owner of Masterpiece Cakeshop in Colorado. In 2018, the Supreme Court rebuked Colorado’s Civil Rights Commission for its hostile treatment of Phillips, punished for refusing to bake a cake for a same-sex wedding in defiance of the Colorado’s Anti-discrimination Act (CADA). 

The court did not reach the question of CADA’s constitutionality. And so Phillips himself faces the unhappy sequel of continuing legal problems. So do other business owners like Lorie Smith, who owns a wedding website design company, and is vulnerable to CADA's demand for ideological conformity. An appellate court held Smith must create websites for same-sex weddings even though it conflicts with her religious views. Smith just petitioned the Supreme Court to review this oppressive decision. 

Fortunately, the story of foster mothers Sharonell Fulton and Toni Simms-Busch and Catholic Social Services of Philadelphia has a happier ending. 

The Supreme Court ruled unanimously this summer that Philadelphia’s refusal to renew its contract with the Archdiocese of Philadelphia’s foster-care placement agency unless it certified same-sex couples as foster parents was unconstitutional. Some commentators wondered if Philadelphia would try to finagle around the court’s ruling. Fortunately, city official agreed not to refuse to contract with Catholic Social Services on foster care services because of the ministry’s refusal to place children with same-sex or unmarried couples and would not exclude foster parents like Fulton and Simms-Busch who work with the agency. 

While that Philadelphia story ends well, religious believers who consider every Supreme Court victory to be definitive need to pay very close attention to the fine print. Take the question of whether religious schools can receive funds from state-sponsored scholarship programs. 

Last year, the court held that Montana violated the First Amendment by excluding religious schools from one such program. Chief Justice John Roberts wrote, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 

Despite such a seemingly clear decision, the Supreme Court this term will review Maine’s unwillingness to get the message. Maine runs an assistance program for students in school districts without a public high school, provided that the school is not “sectarian.” 

State officials say its program is different from Montana’s — a school isn’t excluded if it is “religious” but instead if it “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” 

Justice Neil Gorsuch anticipated such trouble. The First Amendment, he wrote in a concurring opinion in the Montana case, “forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” Maine’s secularist busybodies nevertheless insist Chief Justice Roberts’ ruling allows them wiggle room to pursue their inflexible agenda.  

Religious freedom is winning at the Supreme Court. But these victories can be undermined when government officials look for a workaround — which, in many states, and also now in the federal government, they seem absolutely determined to do.


Andrea Picciotti-Bayer is the director of the Conscience Project.

U.S. Supreme Court Building

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