As the Supreme Court returns to the courtroom on Monday, some legal experts are surprised by the new term’s lack of faith.
So far, the justices have not taken up a single case involving the Constitution’s religion clauses, and there are only a few faith-related cases waiting in the wings.
“It’s not only that there’s not any religion clause cases granted. There’s also not too many existing petitions in that area right now,” said Marc DeGirolami, co-director of the Center for Law and Religion at St. John’s Law School in Queens, New York.
This situation is notable since the Supreme Court has heard several high-profile religion cases in recent years.
Last term, the justices ruled on whether a religious graphic designer had to design same-sex wedding websites and if a Christian postal worker must deliver packages on his Sabbath. The term before that, the court heard cases involving religious school funding, abortion rights and school prayer.
“It’s unusual for the Roberts Court” not to have religion cases on the docket, “just like it is for any Supreme Court,” DeGirolami said.
Of course, there’s still plenty of time for a religion case to be added, although not all stakeholders think that would be a good thing.
Several faith-related advocacy groups regularly claim the court is too willing to wade into religious liberty battles. They say this approach exacerbates tensions on the ground.
But others hope the court does end up adding one or more religion cases to the docket, even if they spur heated debates. By tackling tough issues, the justices help the country find a path to social peace, said Mark Rienzi, president and CEO of the Becket Fund for Religious Liberty.
“Healing comes from the Supreme Court doing the job the right way and protecting the freedoms that we’re all supposed to have under the Constitution,” he said.
What counts as a religion case?
When legal experts like DeGirolami and Rienzi discuss religion cases or religious liberty cases, they’re referring to a broader group of battles than just the ones involving the First Amendment’s free exercise or establishment clauses.
Religion cases often center, instead, on policies put in place long after the Constitution, like the 1964 Civil Rights Act or the Affordable Care Act’s contraception mandate.
Sometimes, lawsuits that are thought of as religion cases only mention religion in passing or just inspire a lot of debate outside the courtroom among people of faith. Recent abortion battles fit in this third group, since religion has always been part of the conversation surrounding Roe v. Wade.
Religion cases in front of the Supreme Court
As of Monday, the Supreme Court hasn’t agreed to hear a single case that fits in the first two categories, and experts on religion and the law don’t agree on whether anything currently on the docket can be reasonably placed in the third.
At least one case, Loper Bright Enterprises v. Raimondo, does involve a faith-focused legal brief. In the brief, Becket argues that religious organizations will benefit if the Supreme Court’s eventual ruling reins in the power of the administrative state.
“We wanted to flag for the Supreme Court the ways in which administrative agencies have been at the forefront, in recent years, of imposing burdens on religious liberty,” Rienzi said.
As Rienzi noted, the Loper Bright case centers on the actions of administrative agencies and asks whether courts should defer to their interpretations of the law. It was filed by a group of fishing vessel operators who take issue with the way the government regulates their work.
Status: The Supreme Court will hear the case later this year.
Cases the Supreme Court could agree to hear soon
Several cases that are more obviously tied to faith-based concerns are currently waiting in the wings of the Supreme Court. This group includes two abortion-related battles, which, if taken up, would be among the most contentious cases of the current term.
Brian Tingley is a licensed marriage and family therapist who sees his professional work as an extension of his personal faith. He markets himself as a “Christian provider” and often works with religious clients who are seeking to address gender- or sexuality-related concerns.
In 2018, Washington state passed a ban on conversion therapy for minors, and Tingley believes the law threatens the future of his practice and limits his free speech and religious exercise rights. He sued to force changes to the law, but the district and circuit courts said state lawmakers have broad authority to regulate health care providers.
In March, Tingley and his legal team appealed to the Supreme Court.
Status: The justices discussed the case at their Sept. 26 conference. Sometime in the near future, they’ll announce whether or not they’ll take it up.
Jean Finney sued the Missouri Department of Corrections for employment discrimination after her relationship with a co-worker’s former spouse fueled conflict at work. When vetting potential jurors for the resulting trial, Finney’s legal team disqualified anyone who, for religious reasons, is opposed to same-sex relationships, arguing that such a juror would not judge Finney, a lesbian, fairly.
Missouri’s attorney general and solicitor general, who are representing the Department of Corrections, say the jury’s ultimate ruling against the department should be overturned, since it was unlawful to eliminate potential jurors on the basis of their faith. After a circuit court declined to intervene, they turned to the Supreme Court.
Status: Missouri’s attorney general and solicitor general have asked the Supreme Court to consider the role of religion in the jury selection process. Finney’s team has until Oct. 5 to file a response to that request.
This case, as well as a closely related one involving drugmaker Danco Laboratories, centers on a pill that’s used to induce abortion called mifepristone. The Alliance for Hippocratic Medicine wants to restrict access to the drug by, among other things, preventing it from being provided by mail.
The Supreme Court already waded into the abortion-pill battle in April, when it ruled that mifepristone could remain available while the legal cases played out. That’s why the pill is still on the market despite the fact that the 5th U.S. Circuit Court of Appeals ruled in favor of the Alliance for Hippocratic Medicine in August.
The FDA and Danco Laboratories have asked the Supreme Court to intervene in the case again and overturn the restrictions put in place by the lower courts.
Status: The FDA and Danco Laboratories filed their requests with the Supreme Court in early September. The Alliance for Hippocratic Medicine’s responses are due Oct. 12.
Debra Vitagliano is motivated by her Catholic faith and life experiences to stand outside abortion clinics and speak with women making their way inside. She’s challenging a Westchester County law that interferes with her planned counseling work by establishing a protective zone around abortion clinics.
Vitagliano and her team argue that the local law — and the past Supreme Court ruling, Hill v. Colorado, that inspired it — wrongly limit First Amendment rights. They lost in the lower courts, but could soon have a chance to argue the case in front of Supreme Court justices who have previously expressed interest in revisiting Hill v. Colorado.
Status: In July, Vitagliano and her legal team asked the Supreme Court to hear her case. The county’s response to this request is due Oct. 25.
What this term could teach us
While it’s notable that the court has not yet taken up a religious liberty case, the justices could end up hearing three or four before the term ends.
Any case added to the docket over the next four months or so will likely fit in this term’s oral arguments schedule.
“It’s early. (The justices) are going to do a lot of granting over the next few months. I would be shocked if, by the end, they don’t add” a religion case, Rienzi said.
Even if they don’t and the term remains relatively religion-free, it will still hold important lessons for the religious groups and individuals that will end up in front of the Supreme Court in the future.
“This term will give us more evidence to try to assess what kind of court this is. Is it a 6-3 divided court or is it, as many have suggested, a 3-3-3 court, with three Democratic appointees, three extreme conservatives and three in the middle who determine results?” said David Cole, the ACLU’s legal director, during a Sept. 21 press briefing.