Q&A: Multiple opportunities for religious freedom protection at Supreme Court

Written by William C. Duncan

October 28, 2020

“Constitutional rights are priceless, but courts don’t always treat them that way,” says Chris Schandevel, legal counsel for Alliance Defending Freedom (ADF). “Unfortunately, that’s been especially true for religious freedom.”

But when Schandevel looks at the current Supreme Court term, he sees multiple opportunities for the court to reaffirm the Constitution’s promise that the free exercise of religion will be protected – in our communities, in the workplace, on college campuses, and in our churches.

When a government action potentially interferes with a fundamental constitutional right, the U.S. Supreme Court uses a test to determine whether the action is unconstitutional. The test is called “strict scrutiny” and is based on the assumption that the government’s interference is unconstitutional unless the government can show that its action is justified by an overwhelming interest.

There is a real concern, though, that some courts have been diluting this test by giving too much credence to government claims when religious freedom is at stake. Enter ADF.

ADF is at the forefront of religious freedom litigation. It is often at the center of the U.S. Supreme Court cases, but it also participates in many other cases that are shaping the law of religious freedom nationally. In our interview with Schandevel about the current Supreme Court term, he argues that the same legal doctrine shielding police officers from prosecution when they behave illegally and unjustly also undermines religious free-exercise rights. He also explains why the Supreme Court “should make clear that governments can’t single out churches for disfavored treatment – even during a pandemic.”

Bill Duncan, Sutherland religious freedom policy fellow: Does Alliance Defending Freedom have any thoughts about how the court should address Fulton v. City of Philadelphia?

Chris Schandevel: We do. ADF represents a Christian adoption provider in New York called New Hope Family Services and a Christian foster care provider in Michigan called Catholic Charities West Michigan. Like the city of Philadelphia, officials in both states are demanding these providers violate their religious beliefs and place children with same-sex couples if they want to keep serving children. 

In all three cases, government officials claim the Supreme Court’s 1990 decision in Employment Division v. Smith means their actions don’t have to survive strict scrutiny to be constitutional. Under that view of Smith, some courts have held that the government can force religious people to participate in same-sex weddings and same-sex adoptions and foster care without violating the First Amendment.

But that’s wrong. Smith was a criminal case about “outward physical acts,” in that case smoking a controlled substance. And both before Smith and after it, the Supreme Court has been clear that unless it can survive strict scrutiny, the government can’t regulate a religious group’s stance on issues at the heart of the group’s faith and mission – issues like marriage, raising children, and teaching the faith to the next generation. Smith doesn’t apply in these contexts, and the Supreme Court should reaffirm that in Fulton or overrule Smith entirely. That’s why ADF filed a friend-of-the-court brief urging the court to strike down Philadelphia’s unconstitutional policy.

Whether the court overrules Smith or further cabins [limits] it, the court should warn lower courts to stop watering down strict scrutiny in religious-freedom cases. Otherwise, activist courts will keep giving governments a free pass to force people of faith to participate in same-sex weddings, adoptions and foster care. Strict scrutiny must be truly strict to ensure that our religious freedoms receive the full protection they deserve. 

Duncan: Which of the cases being considered but not yet accepted for review by the Supreme Court this term would be most important for the court to address? 

Schandevel: ADF is closely watching two more cases with cert [certiorari] petitions pending before the Court: Arlene’s Flowers v. Washington and Dignity Health v. Minton. In Arlene’s Flowers, ADF filed a cert petition on behalf of a floral artist named Barronelle Stutzman who was sued by the state of Washington for declining to participate in – and create custom floral art for – a same-sex wedding. In Dignity Health, ADF filed a friend-of-the-court brief in support of a Catholic hospital in California that was sued for declining to perform an elective surgery intended to facilitate a patient’s gender transition. The court appears to be waiting to rule on both petitions until after it decides Fulton.

We’re also hoping the court will agree to hear one of the qualified immunity cases with cert petitions before the court. In Taylor v. Riojas, ADF joined a friend-of-the-court brief with the ACLU and the NAACP, among others, asking the court to revisit the judge-made doctrine of qualified immunity. In religious-freedom cases, government officials often hide behind that doctrine when they’ve been caught trampling on free-exercise rights. That’s what happens far too often when judges play the part of Congress and legislate from the bench: Religious freedom gets lost in the shuffle.

Duncan: Are there some holes in the Supreme Court’s religious freedom rulings that would be a priority for the court to address? 

Schandevel: There are, and the court could address several this term. One case the court will hear is Uzuegbunam v. Preczewski. In that case, ADF represents two college students who were prevented from peacefully sharing their faith on campus by school officials enforcing speech codes. After ADF filed suit, the college claimed the students’ peaceful expression amounted to “fighting words” that the First Amendment does not protect. Later, the college changed its policies and argued the case was moot even if it had violated the students’ rights.

The lower courts agreed because the students had sought “nominal damages,” a small sum of money signifying they had suffered harm. In the 11th Circuit, that’s not enough to prevent a case from becoming moot. That’s wrong. Constitutional rights are priceless, and we’re hopeful the Supreme Court will say so. 

In another case about remedies, Tanzin v. Tanvir, the Supreme Court will decide whether the Religious Freedom Restoration Act allows plaintiffs to obtain money damages from federal employees who violate their well-established rights. This case presents another opportunity for the court to hold that lower courts shouldn’t let government officials off the hook when they violate people’s religious freedoms.

Finally, back in July when the Supreme Court denied ADF’s emergency application on behalf of a Nevada church, Calvary Chapel Dayton Valley, the case exposed more holes in the court’s free-exercise case law. During a nationwide health crisis like the COVID-19 pandemic, how much deference should courts give to governments who treat churches worse than restaurants, gyms, movie theaters, and even casinos and other entertainment venues? And for how long? Calvary Chapel’s case is in the Ninth Circuit for now. But the Supreme Court needs to answer these fundamental questions soon. If it does, it should make clear that governments can’t single out churches for disfavored treatment – even during a pandemic.

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