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Religion at the Supreme Court: What happened this year and what’s coming next?

Here’s an overview of faith-related cases that could be argued before the Supreme Court next term

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Illustration by Zoë Petersen, Deseret News

This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.

The Supreme Court is now on summer break, but, before signing off, the justices gave the rest of us some homework to do.

On Friday, the court announced 10 new additions to its slate of cases for next term, including a battle between a religious family and the state of Maine over whether public tuition assistance funds can be used at private, “sectarian” schools.

I’m sure I won’t be the only person spending the next few months researching and reflecting on what kinds of decisions to expect next year. This term served as a reminder that the court is full of surprises, even when one group of justices — right now it’s the conservatives — has the numbers on their side.

Here’s an overview of key religion-related decisions handed down this year:

  • Tanzin v. Tanvir: Justices ruled 8-0 in favor of Muslim men who were placed on the FBI’s no-fly list. As a result, people of faith will now be able to seek monetary damages from individual government employees who trample their religious rights.
  • Uzuegbunam v. Preczewski: The court created new opportunities for victims of alleged free speech or religious freedom violations to seek justice in this case involving Christian college students fighting their school’s speech policy. The justices ruled 8-1 that lawsuits can continue even after the government has abandoned the policy or behavior that prompted the suit.
  • Tandon v. Newsom: In a so-called shadow docket decision, the court granted relief to houses of worship challenging the state of California’s lockdown rules. As I noted in a recent newsletter, Tandon v. Newsom outlined a new approach to free exercise litigation.
  • Fulton v. City of Philadelphia: Justices unanimously ruled in favor of Catholic Social Services, enabling the faith-based foster care agency to continue partnering with the city despite the agency’s refusal to complete assessments of same-sex couples. The court said the government cannot refuse to offer religious accommodations to laws when it’s willing to offer other types of exceptions.

Given the court’s conservative majority, it’s not surprising that the religious plaintiffs won in all four cases.

However, it is interesting to look at the margins of victory; Tandon was the only suit decided along ideological lines.

“In a divisive time with a lot of conflict, we saw the court over and over again come to super-majority and often unanimous decisions” in its religion-related cases, said Mark Rienzi, president of the Becket Fund for Religious Liberty, during a July 1 press call.

Will the same be true next year? Only time will tell. But looking at the faith-related cases the court has already agreed to hear and those it’s still considering, I can’t help but predict much closer, more contentious decisions in 2022.

Here are some cases to watch for next term:

  • Carson v. Makin: On Friday, the Supreme Court announced it would take up this clash over the rules governing Maine’s tuition assistance program. Currently, some private, religious schools are ineligible for the funds because of the state’s concerns about using public money to fund religious activities. Last year, the court overturned similar rules in Montana in a 5-4 decision.
  • Federal Bureau of Investigation v. Fazaga: Last month, justices agreed to hear a case questioning the government’s ability to withhold certain kinds of evidence under its state secrets privilege. The lawsuit was brought by a group of Muslim men who say the FBI targeted them after they refused to help spy on their faith community.
  • Dignity Health v. Minton: The Supreme Court has not yet announced whether it will hear this case involving a Catholic hospital and transgender man. The man, Evan Minton, filed the lawsuit after the hospital, citing religious concerns, canceled his appointment for a hysterectomy. If they take it up, justices would have to decide how to balance the hospital’s religious freedom protections with LGBTQ anti-discrimination law.
  • Diocese of Albany v. Lacewell: Do you remember previous battles over the Affordable Care Act’s birth control mandate? This case is similar, except instead of featuring a federal law and insurance coverage for contraception, it involves a New York state law and insurance coverage for abortion. The Supreme Court has not yet decided whether to take up the case.
  • Apache Stronghold v. United States: This case is one of two involving Native Americans that I discussed in last week’s newsletter. It’s focused on Oak Flat, a site that’s sacred to the Western Apache people that’s at risk of becoming a copper mine. The 9th Circuit Court of Appeals will hear this case later this year and, depending on the timing of the ruling and the ruling itself, the case could make it to the Supreme Court by spring.

Fresh off the press

The Supreme Court on Thursday ruled in favor of two nonprofits challenging the state of California’s donor disclosure rules, and I wrote about the decision. Although the case did not involve religious freedom law, several faith-related organizations, including Becket, filed briefs supporting the nonprofits’ claims.

Term of the week: Certiorari

Certiorari refers to the process by which an individual or organization asks the Supreme Court to review their case. They file a petition for a “writ of certiorari” spelling out why their lawsuit deserves the justices’ attention.

If the court agrees to review the case, that means the justices have “granted certiorari” or “granted cert.”

What I’m reading ...

Political, religious and indigenous leaders in Canada are currently grappling with an unspeakable tragedy: The discovery of hundreds of unmarked graves at the former sites of residential schools for indigenous children. “From the 19th century until the 1970s, more than 150,000 ... children were forced to attend state-funded Christian boarding schools in an effort to assimilate them into Canadian society,” The Associated Press reported. Indigenous leaders are now seeking an apology from Pope Francis, since many of the schools were run by the Catholic Church.

Pew Research Center has released its long-awaited look at how various religious, ethnic and age groups voted in the 2020 election. Researchers found that former President Donald Trump earned the support of 84% of white evangelical Protestants. President Joe Biden, on the other hand, received more votes from atheists and agnostics in 2020 than Hillary Clinton did in 2016.

Odds and ends

If you’re a fan of romantic comedies like “You’ve Got Mail” and “The Holiday,” check out the book, “Would Like to Meet,” by Rachel Winters. I read it last week and found it absolutely delightful.