SALT LAKE CITY — Religious liberty advocates are gearing up for a big year at the Supreme Court, which will be back in session on Oct. 7.
Justices have already agreed to hear four faith-related cases on LGBTQ rights and religious schooling, and they’re expected to take up a few more religious freedom suits later this fall. By the end of June 2020, Americans should have a much clearer picture of what the Constitution guarantees to people of faith.
“I can’t recall a time in the last 20 years that there were this many key issues ready for a decision,” said Mark Rienzi, president of the Becket Fund for Religious Liberty, on a Tuesday morning press call.
The surge in cases can be explained, in part, by the Supreme Court’s reticence in recent years to issue broad rulings, legal experts said. Justices left questions unanswered about the rights of small business owners to turn away LGBTQ customers or faith groups’ ability to access government funding, which sowed confusion in the lower courts.
“There’s been continued turmoil in the lower courts and continued discord,” Rienzi said.
The rise in faith-related cases is also tied to recent shifts in the political landscape and public opinion. Rising support for LGBTQ rights has put pressure on long-standing religious freedom protections and led many conservative religious groups to turn to the courts for relief. They’ve won several major lawsuits in recent years, and upset some progressive religious freedom advocates in the process.
“The religious right is seeking to turn the concept of religious freedom ... into a sword that would be used to deny the civil rights of LGBTQ people, women and religious minorities,” said Alex J. Luchenitser, associate legal director for Americans United for Separation of Church and State.
Many conservative religious leaders, as well as the conservative wing of the Supreme Court, would reject this assessment, although it’s hard to deny the discord in the country. Americans are deeply divided over how to balance faith-based protections with other civil rights, regardless of the Supreme Court’s recent calls for unity and respect.
During the next nine months, tensions will likely continue to escalate as justices weigh the rights of religiously affiliated schools and other institutions. Four justices have already signaled interest in broadening the court’s interpretation of the Constitution’s free exercise clause, and they’re expected to be sympathetic to all the religious freedom claims made this term.
Even so, almost anything could happen, legal experts said. The only thing that’s clear is that more Americans should be paying attention to the Supreme Court’s actions.
“The religious freedom of all Americans is at stake right now,” Luchenitser said.
Here’s a list of cases to keep an eye on over the next nine months, including four the Supreme Court will hear for sure and four it is still considering.
Cases the Supreme Court has agreed to hear
These three cases center on the rights of gay and transgender employees. The Supreme Court will weigh whether prohibitions on sex discrimination in federal employment law outlaw discrimination against members of the LGBTQ community.
“The question is whether firing someone because of their sexual orientation or gender identity is a form of discrimination based on sex,” said Luke Goodrich, vice president and senior counsel for Becket, on the Tuesday press call.
Bostock and Zarda involve gay men who were fired soon after their companies learned of their sexual orientation, while Harris Funeral Homes features a transgender woman whose employer was unwilling to work with after her transition. The cases were filed separately, but the Supreme Court will hear oral arguments for all three on Oct. 8.
Although the cases don’t deal with religion directly, the justices’ eventual ruling could have significant ramifications for people of faith, according to Goodrich and others. If the Supreme Court decides sex discrimination includes LGBTQ discrimination, it could disrupt religious organizations’ ability to enforce faith-based employee standards related to sexual orientation or gender identity, such as a rule that faculty members can only be married to members of the opposite sex.
“If you cannot hire a person who is in solidarity with your faith perspective, you actually can’t deliver on your missional promise,” said Shirley Hoogstra, president of the Council for Christian College and Universities, to the Deseret News last month.
If, on the other hand, the Supreme Court rules that current nondiscrimination protections don’t apply to LGBTQ workers, then gay and transgender Americans will suffer, wrote James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project, in an April blog post.
“A core American value is that people should be judged in the workplace based on their performance, not their identity,” he said.
In recent years, the Supreme Court has often tried to limit the scope of its rulings, issuing narrow decisions that leave many questions unanswered. That’s likely not possible in these cases, Goodrich said.
“I don’t see a way the court can dodge (the question) or rule very narrowly,” he said. “I think we will get a definitive answer.”
Espinoza v. Montana Department of Revenue is a lower profile case with a more obvious link to religion. Justices will consider whether Montana’s decision to bar religious schools from a state scholarship program and then cancel the program altogether violates the Constitution.
“This case could have a huge effect on the relationship between church and state in a wide variety of contexts,” Goodrich said.
When Montana’s scholarship program was launched in 2015, private, religiously affiliated schools were treated the same as other private institutions. Low-income, K-12 students who received the funds “could attend any qualified school in the state,” Goodrich said.
Problems arose when the Montana Department of Revenue determined the program violated a state law that prevents tax credits from benefiting religious institutions. Similar laws are on the books in nearly 40 states, and they’re often criticized for their historic link to anti-Catholic bias.
Montana decided to exclude faith-based schools from the program, but a group of parents filed a lawsuit disputing the change. The Montana Supreme Court agreed the ban on faith-based schools was problematic, citing a 2017 Supreme Court ruling granting a religiously affiliated preschool access to government funds. However, it struck down the whole program instead of ending the ban.
The case is an opportunity for the Supreme Court to once again say faith groups deserve access to the same public benefits as other institutions, Goodrich said. But it’s possible justices will accept the state Supreme Court’s decision to end the program and leave bigger questions about funding laws for another day.
Pending petitions before the Supreme Court
When the Supreme Court legalized same-sex marriage nationwide in 2015, it created legal trouble for faith-based foster care and adoption agencies. Organizations that had previously avoided LGBTQ rights-related conflict by only working with married couples were suddenly vulnerable to lawsuits if they refused to coordinate adoptions for married LGBTQ couples.
Over the last four years, states across the country have tried to address the fallout with limited success, as the Deseret News reported in June. There are several ongoing lawsuits asking whether faith-based adoption agencies should be able to turn away gay couples and still access government contracts, and now the Supreme Court has a chance to hear one.
Fulton v. City of Philadelphia involves a Catholic agency and two foster moms who are challenging the city’s decision to force faith-based organizations to comply with LGBTQ nondiscrimination protections. They argue that children and families suffer when agencies are forced to choose between closing and violating their religious beliefs.
However, civil rights organizations like the ACLU say it would be wrong for the government to work with agencies that won’t serve all Americans. Religious freedom doesn’t include a right to harm LGBTQ couples, said Leslie Cooper, deputy director of the ACLU’s LGBT & HIV Project, to the Deseret News earlier this year.
“When you accept taxpayer funds to provide this really important government service, you can’t throw away good families based on religious criteria that have no relationship to your ability to care for the child,” she said.
Catholic Social Services and the two moms, who are represented by Becket, lost at the appellate level and appealed to the Supreme Court in July. They’re hopeful that the justices will help bring an end to the adoption-related drama.
“We know there is some interest at the court in this case,” said Lori Windham, senior counsel for Becket, on the Tuesday press call.
In Arlene’s Flowers v. Washington, a Christian business owner is fighting for her ability to refuse to participate in same-sex weddings.
Sound familiar? That’s because the case has a lot in common with Masterpiece Cakeshop v. Colorado Civil Rights Commission, the high-profile clash between a Christian baker and gay couple that the Supreme Court ruled on in 2018.
In Masterpiece, justices decided that Colorado officials had disrespected the baker’s religious beliefs in the process of determining whether he needed to comply with LGBTQ nondiscrimination protections. They encouraged respect for people of faith, but they did not say whether religious freedom should win out when it comes into conflict with other civil rights.
Now, the Supreme Court has been asked once again to balance the Constitution’s faith-related protections with LGBTQ rights. Barronelle Stutzman, who owns Arlene’s Flowers in Richland, Washington, argues that she shouldn’t be forced to express support for a gay couple by providing flowers for their wedding.
Justices considered taking up this case last year, as well, but they sent it back to the lower courts for reconsideration in light of the Masterpiece ruling. They may not be able to delay weighing in any longer, Luchenitser said.
Earlier this year, the Supreme Court delayed the execution of Patrick Henry Murphy, a Buddhist inmate in Texas who was being denied access to a spiritual adviser. Now, Murphy is asking the court to change Texas law.
The initial stay of execution in Murphy’s case focused on unequal access to spiritual counseling. Texas allowed Christian and Muslim chaplains into the execution chamber, but not leaders of other faiths.
“The Constitution prohibits such denominational discrimination,” wrote Justice Brett Kavanaugh at the time.
After the stay, Texas adjusted its policy. It no longer allows any spiritual advisers into the execution chamber.
Some legal experts, including Kavanaugh, said this legal shift fixed the religious freedom problems. But others argued the state has shown unlawful hostility toward religion.
Murphy is asking the court to more directly address the religious freedom rights of death row inmates and explore the constitutionality of Texas law.
How far does the government have to go to accommodate people of faith? That’s the question presented in Ricks v. Idaho Board of Contractors, which deals with the Constitution’s free exercise clause.
According to a controversial 1991 Supreme Court ruling, the answer is not that far. In Employment Division v. Smith, justices said government officials don’t have to provide religious exemptions to generally applicable, neutral laws.
In the new case, a Christian construction worker aims to illustrate how this decision failed people of faith. George Ricks says it would violate his faith to provide his Social Security number to the state in order to register as an independent contractor. Idaho officials don’t want to offer a religious exemption and, because of Employment Division v. Smith, lower court judges haven’t forced them to.
Ricks wants the Supreme Court to revisit that 1991 ruling and increase access to religious exemptions.
“What this case is about is asking the court to revisit whether (the Smith ruling) is consistent with the religious freedom commitments of the Constitution,” said Joe Davis, one of the attorneys involved, to the Deseret News last month.
Four Supreme Court justices have already implied that it’s not. In a statement released in January about a different case, they expressed dissatisfaction with the court’s past interpretation of the Constitution’s free exercise clause.
“The four justices seemed to pretty clearly indicate that they saw the (Smith) decision as at least somewhat problematic and worth revisiting,” Rienzi said.