The Supreme Court imposed one religious exemption after another. The next one can be a blow to LGBTQ rights.
In recent decades, especially this one, the United States Supreme Court has increasingly lent a sympathetic ear to those who say their religious beliefs are trampled on, granting one religious exemption after another to the First Amendment. . Now the court is poised to take another giant leap this quarter, perhaps giving the religious right another major victory in its recurring confrontation with LGBTQ equality. The religious right has already won several other lawsuits in recent years:
- In 2014, the court ruled 5-4 that the city of Greece, New York, could open its town halls with sectarian prayers, as long as no one was forced to participate and the practice was open to all religions.
- In 2017, the court ruled 7-2 that a Lutheran church in Missouri could receive government funds for its preschool playground despite the First Amendment guarantee of separation of church and state.
- In 2020, a record year for religious exemptions, the court ruled that religious schools are not required to anti-discrimination laws in hiring, that their students are eligible for state funded scholarships and that religious entities cannot be forced to provide contraceptive health care to their employees.
- And in February, during the COVID-19 pandemic, the court sided with places of worship requesting exemptions from the ban on organizing indoor services. The court ruled that while public health and safety are important, they do not outweigh the right to the free exercise of religion. The tribunal highlighted this decision again in April, when in another 5-4 decision, he found that religious gatherings in private homes were not subject to government-imposed COVID-19 restrictions.
Another major win could come with Fulton over City of Philadelphia. The case revolves around whether a Catholic-run foster care provider can refuse same-sex couples under the First Amendment guarantee of the free exercise of religion. Philadelphia demands that religious organizations that receive funding and contracts from the city follow its policy of non-discrimination against same-sex couples. This policy applies to both religious and non-religious organizations, but Catholic Social Services, one of the largest child welfare providers in Pennsylvania, argues that it shouldn’t have to consider same-sex couples as foster parents, such as homosexuality and same-sex marriage. go against the doctrine of the church.
Two lower courts ruled in favor of the city, upholding the 1990 Supreme Court ruling in Division of Employment c. Smith, which requires that any law that violates religion be neutral – does not target any particular religion – and applies equally to all. But in ruling on Fulton, it is possible that the judges will overturn Smith, a decision in which conservative Catholic judge Antonin Scalia wrote the majority opinion.
“What is at stake is the interpretation of the free exercise clause of the Constitution,” said Carl H. Esbeck, professor emeritus of law at the University of Missouri who filed an amicus brief in support of CSS for the National Association of Evangelicals. “You would think this is an issue that was decided a long time ago, but it’s really up for grabs here because if you take out Smith, the free exercise clause suddenly offers a lot more protection than it does. has done over the past 30 years. This is why this case is on everyone’s watch list.
Esbeck and other court watchers expect CSS to win as well. Steven K. Green, director of the Center for Religion, Law and Democracy at Willamette University, written in April for The Conversation this “[r]religious claimants have enjoyed a winning streak in the Supreme Court in recent years. And, indeed, a recent study by jurists Lee Epstein and Eric Posner, found that the court has ruled in favor of religious claimants 81 percent of the time since Chief Justice John Roberts was appointed in 2005. In the 52 years before his appointment, that figure has risen to around 50 percent.
The beneficiaries of these decisions have also changed. In the 20th century, court rulings often protected religious minorities like atheists. For example, a decision from 1963 prohibits compulsory sectarian prayer in public schools, and a decision from 1972 allowed parents to withdraw their children from school for religious reasons. But decisions made over the past decade have repeatedly protected traditional – usually Christian – religious majorities.
“[T]its transformation is largely the result of changes in court staff, ”Epstein and Posner wrote in their study. “[A] The majority of Roberts Court judges are ideologically conservative and religious, a significant break with the past.
Indeed, six of the nine judges – Roberts, Samuel Alito, Clarence Thomas, Sonia Sotomayor, Amy Coney Barrett and Brett Kavanaugh – are Catholics, the highest number in court history. dissident of the court’s majority opinion, written by Roberts, which dismissed a California church’s challenge to state limitations on in-person gatherings due to COVID-19. Although the court ruled that the church could organize services – but only to a limited capacity – Kavanaugh felt the decision did not go far enough in protecting religious freedom. He wrote that the state’s COVID-19 laws “unquestionably discriminate against religion” in violation of the free exercise clause. Roberts, apparently criticizing Kavanaugh for presenting the case as being deliberately prejudicial to religion, wrote that “[t]The idea that it is “indisputably clear” that the government’s limitations are unconstitutional seems rather unlikely.
Another development in this move towards promoting exemptions for religious freedom is the “Project Blitz” – a religious law strategy to flood state legislatures with controversial religious freedom laws designed to challenge the status quo by reaching the end of the spectrum. Supreme Court. Supported by a coalition of conservative Christian organizations, Project Blitz targets LGBTQ rights, women’s reproductive rights and more. And in Fulton, CSS is represented by the Becket Fund for Religious Liberty, which has taken on several cases that originate from Project Blitz model legislation. The Becket Fund claims to have won 87 percent of its nearly 200 cases to date.
Lawyers see two likely avenues for a possible decision on Fulton. First, by ruling for CSS, the court could overturn Smith. Marci hamilton, a professor of practice at the Fels Institute of Government at the University of Pennsylvania who filed an amicus brief in favor of the city of Philadelphia, likens Smith to a stop sign outside a church. “Everyone has to stop there, no matter what you think,” she said.
But, if Smith is overthrown, she continued, it would mean that only certain laws would apply to religious entities like CSS. A pastor late for church, she said, could walk right past a stop sign.
“This pastor has an argument he’s never had before if Smith is no longer the law,” Hamilton said. “The real danger, and in my opinion, the evil that lies in this concept of religious freedom without consideration of the common good is that we end up allowing religious actors to challenge laws that are necessary for us all. This will open the floodgates for religious organizations saying they shouldn’t have to cover medical procedures they deem to be against their faith, whether it’s blood transfusion, reproductive care or vaccines.
But not everyone considers Smith to be overthrown to be a bad thing. Howard slugh, Advocate General of the Jewish Coalition for Religious Freedom, filed an amicus memory for CSS and would welcome Smith’s disappearance. “If the court overturns Smith, it would give much more protection to every religious person across the country,” he said. “This means that the government will have to meet a much higher bar” before it can infringe on the free exercise of religion.
The second avenue the court could take would be to grant an exemption specifically to CSS and, by extension, any other religious group that opposes same-sex couples. Many Fulton watchers say this is the way they expect the court to be.
“I suspect we’ll see an opinion that aims to be narrow – an opinion that doesn’t overthrow Smith but finds for CSS that the city is not enforcing their exemptions in a neutral manner,” said Amanda Shafer Berman, a lawyer who co-wrote an amicus brief for the Annie E. Casey Foundation in support of Philadelphia. “I think they can end with a decision for the petitioners that doesn’t spill the basket of apples, but sets a precedent for more of a tougher look at the government infringing on religious freedom.”
Berman points out that in the pleadings, which the court heard (remotely) on Nov. 4, judges asked a number of questions about what exemptions the City of Philadelphia allows from its nondiscrimination policy – for example, when a family is not unable to accommodate a disabled child or unable to afford to care for a child with special needs.
Either way, the impact of a decision for CSS could be huge, said Green of the Center for Religion, Law and Democracy. To overthrow Smith would mean endowing religion with “most-favored-nation status” – a phrase coined by First Amendment researcher and law professor Douglas Laycock and co-opted by Kavanaugh in his dissent on COVID-19 regulations. Essentially, the concern is that religious freedom would almost always trump any other government concern, such as health, public safety, and non-discrimination.
“If you raise religious objections to neutral laws, then potentially any religious entity that contracts with the government, or any business that does not want to be subject to non-discrimination laws might say, ‘We have a religious objection. to serve same-sex couples or provide certain types of health care, “Green said.” If they govern that way, I think you’re going to find a multitude of companies that will raise that claim. “
And if the court makes a more restrictive ruling, Green continued, that could have a huge impact as well. It all depends on what judges value most – the rights of religious practitioners or LGBTQ rights.
“I have no doubt that the religious conservatives on the bench could say that there is nothing in the Constitution that mentions LGBTQ rights,” he said. “But we have something in the Constitution that talks about religious rights, and it’s called the First Amendment.”