September 29, 2020
Prospective Supreme Court Justice Amy Coney Barrett was nominated to serve on the U.S. Court of Appeals for the 7th Circuit in 2017. Her confirmation hearing at that time drew attention specifically because of questions about her religious beliefs. In fact, Sen. Dianne Feinstein infamously said: “The dogma lives loudly within you.”
Judge Amy Coney Barrett and religious toleration
Barrett was also asked about her religion at a Hillsdale College event in 2019, specifically, “What role, if any, should the faith of a nominee have in the confirmation process?” It was a seemingly easy question meriting her one-word answer, “None.”
Now that Barrett is likely to undergo intense scrutiny over her nomination to the U.S. Supreme Court, it will be well for senators and others to remember the wise comment Barrett offered in following up her initial answer:
We have a long tradition of religious tolerance in this country. And, in fact, the religious test clause in the Constitution makes it unconstitutional to impose a religious test on anyone who holds public office.
Barrett’s appreciation for our national tradition of religious tolerance will be an important part of her expected service on the Supreme Court – particularly because the court has been an increasingly important arbiter of religious freedom disputes in recent years.
An example from the 7th Circuit
Barrett participated in an interesting religious freedom case on the 7th Circuit, though she has yet to write an opinion in one. That case involved a Jewish day school that was sued by a former employee who claimed she was fired for discriminatory reasons. Since this case was so similar to a 2012 case decided by the U.S. Supreme Court, the outcome was relatively simple. The three judges, including Barrett, issued an unsigned opinion applying the ministerial exception, which forbids the government from inquiring into the decisions of religious groups about who will represent them in sharing their teachings.
That opinion noted:
[T]here may be contexts in which drawing a distinction between secular and religious teaching is necessary, but it is inappropriate when doing so involves the government challenging a religious institution’s honest assertion that a particular practice is a tenet of its faith.
This case suggests Judge Barrett is likely to abide by settled legal principles or religious freedom and to be solicitous of the constitutional rights of people of faith. That approach will be an important contribution to the court when its role in protecting religious freedom is unparalleled by any other branch of government.
Religious freedom in the upcoming Supreme Court term
The court has accepted one religious freedom case in which it will issue a ruling, and it will have to decide whether to rule on at least four other key religious freedom cases in its next term starting in October.
The most high-profile religious freedom case the Supreme Court will hear in the upcoming term is Fulton v. City of Philadelphia. The case involves Philadelphia’s decision to create conditions for the participation of Catholic Social Services in the foster care system. Those conditions include placing children with cohabiting and same-sex couples and creating “a written document evaluating and endorsing same-sex and unmarried cohabitating relationships.”
In Fulton, the court will determine whether this law singles out the religious agency for unfair treatment in violation of the First Amendment. It also could allow the court to rethink a 1990 decision that limited the interpretation of the religious freedom. That decision allowed the government to enact any law or policy that burdened religious practice as long as the government could claim it advanced a public interest. The court could – indeed should – return to an earlier rule that required the government to show that any burden it imposed on the exercise of a religious belief was absolutely necessary, and that there was no way it could accomplish the necessary result without imposing the burden.
The court receives thousands of petitions from individuals or organizations who lost their case at a lower level and would like the court to decide their appeal. Very few (probably less than 5%) of these petitions are granted. In this upcoming term, the court will also be deciding whether to accept some additional cases that could shape the law of religious liberty:
- One, Dalberiste v. GLE Associates, involves a Seventh-day Adventist employee whose job offer was rescinded after he asked for Saturdays off work for religious reasons.
- Another is Tanzin v. Tanvir, which involves a lawsuit from three Muslim men who were threatened with being placed on the do-not-fly list in an attempt to pressure them to give information on Muslim communities.
- Another case involves a challenge to a zoning law that prevented using land to build a rabbinical college.
- Finally, another case challenges a university policy that restricted a student from sharing his faith on campus.
Clearly the Senate, in the nomination hearings, and the court in its many potential religious freedom decisions, will have an opportunity to vindicate the principle of religious tolerance Barrett has endorsed throughout her career. The response of these bodies will shape the law and cultural practice for religious freedom for decades to come.
Photo: Rachel Malehorn
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