Supreme Court Championed Religious Freedom in Recent 2020 Term
COMMENTARY: A review of the last term makes clear the composition of the court makes a difference when it comes to protecting religious freedom — for better or worse.
The Supreme Court ended its term at the beginning of July. Once again, the court championed religious freedom. Let’s take a quick look at some of the court’s most important decisions:
COVID Restrictions Struck Down
At the beginning of the pandemic, the Supreme Court was reluctant to hear emergency challenges to state and local restrictions on worship. A 5-4 majority declined to order emergency relief in a challenge to California’s restrictions in May 2020. Two months later, the court again refused to halt Nevada’s restrictions on houses of worship. By the fall of last year, however, things changed — as did the composition of the court, with Amy Coney Barrett replacing the late Justice Ruth Bader Ginsburg on Oct. 27, 2020.
On the eve of Thanksgiving, the court stopped New York’s Gov. Andrew Cuomo from enforcing an executive order that imposed very severe restrictions on attendance at religious services in areas of the state affected by the coronavirus.
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten,” explained the new majority. Since then, the court has several times struck down the targeting of worship on grounds of public health, pointing to its New York decision.
What are key takeaways here? First, religious activities cannot be subjected to less favorable treatment than secular activities. Second, not even an unprecedented health crisis can erase rights protected under the Constitution. And, finally, the composition of the court makes a difference when it comes to protecting religious freedom — for better or worse.
Important Precedent on the Free Exercise of Religion
The right to worship freely is just one facet of the free-exercise guarantee found in the First Amendment. In a much-anticipated decision, the Supreme Court unanimously ruled that the city of 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 violates the free-exercise guarantee found in the First Amendment. This is a hugely important development. The decision in Fulton v. Philadelphia protects the right of religious Americans to contribute to the needs of their neighbors without having to leave their beliefs at the door.
Chief Justice Roberts, writing for the majority, concluded that Philadelphia’s contract with private foster-care agencies permitted individual exemptions from its anti-discrimination policy. The court therefore looked not at whether the city had “a compelling interest in enforcing its non-discrimination policies generally, but at whether it had such an interest in denying an exception to CSS [Catholic Social Services].” All nine justices agreed that the city did not.
Post-Fulton and More
Typically, it takes months or even years to see how much impact a decision will have on future cases. In the case of Fulton, it took less than one month. On July 2, the Supreme Court issued an order granting review and then vacating the lower-court decision. The case, brought by a religious community against their local government, was remanded back in light of Fulton.
The Swartzentruber Amish argue that Fillmore County, Minnesota, violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when the county demanded they install modern septic tanks for disposal of “gray water” — water used, for example, in dishwashing or laundry — or be subject to jail, fines and even losing their farms. The Swartzentruber believe that their religion forbids the use of such technology and asked to be exempt from the rule. The group proposed using wood-chip basins to treat their gray water, something that is allowed in other jurisdictions, but the local officials wouldn’t budge.
In his concurring opinion, Justice Neil Gorsuch pointed to “a few issues the lower courts and administrative authorities may wish to consider.” He focused on how the lower courts should apply the standard of review known as “strict scrutiny.” When a court considers whether government has a “compelling governmental interest” in imposing a contested regulation, explained Gorsuch, it must include reference to “the specific application of [a regulation] to this community.”
The emphasis on “this community” is significant: The government must have a compelling reason to deny the specific community or person their rights. Moreover, Gorsuch wrote that courts must also give weight to exemptions that other groups enjoy both in and outside the jurisdiction.
This point is crucial. Before denying an accommodation, the government must do some homework. Quoting Fulton, Gorsuch reminded the lower courts, “If ‘the government can achieve its interests in a manner that does not burden religion, it must do so.’”
On the same day that the court granted relief for the Swartzentruber Amish, it issued orders in two religious-exercise cases.
In the first, the court granted review in Carson v. Makin, a case challenging a Maine tuition-assistance program that allows funds to be used only at “nonsectarian” schools. This appears to be another victory for families wanting to send their children to religious schools.
Last summer, in Espinoza v. Montana Department of Revenue, the Supreme Court ruled that although states are not required to subsidize private education, states that choose to do so cannot exclude religious schools from receiving funding simply because they are religious. With Carson, the court will have the chance to reaffirm Espinoza’s rule and further expand school choice for families.
In the other order, the court took a position less favorable to conscience rights. It denied review of the petition brought by Barronelle Stutzman, a Christian florist in Washington who refused to create wedding flower arrangements for the same-sex wedding of a longtime client.
The Washington Supreme Court had allowed the state attorney general and the client to sue Stutzman. In response to the court’s decision, three justices — Clarence Thomas, Samuel Alito and Gorsuch — wrote in a brief statement that they would have granted the petition for review.
Although the court’s order disappointingly ends Stutzman’s battle, advocates point out that other courts have taken a position different from that of the Washington Supreme Court. The widespread confusion in lower courts over whether the government can force someone to use their creative talents against their beliefs will come to the Supreme Court sooner rather than later. I’m betting that when it does, and it is time to issue a clear ruling, religious liberty will prevail.
This term, in every case that resulted in an opinion (including those referenced above and others), the Supreme Court has championed religious freedom. Our courts, however, cannot singlehandedly protect religious freedom in America.
The other branches of government at all levels — federal, state and local — must be made up of men and women who understand and respect the limits of their authority. Until this happens, be prepared for more cases to make their way to a Supreme Court with a solid track record in favor of religious freedom.