Q&A with legal scholar: Upcoming SCOTUS cases

Written by William C. Duncan

October 21, 2020

Misinterpretation and misunderstanding of the religion clauses in the First Amendment has “led to the diminishment of Americans’ rights to both free exercise and free speech,” says Howard Slugh, founder and general counsel of the Jewish Coalition for Religious Liberty and a constitutional lawyer in Washington, D.C. Slugh, a powerful voice for religious freedom, has participated in previous Sutherland events. As these events have highlighted, courts and legislatures create legal rules impacting the exercise of religion, resulting in important implications for religious minorities.

With another U.S. Supreme Court term beginning, there are more opportunities for guidance and protection of religious freedom. To understand these opportunities, we asked Slugh some questions about religious freedom cases in the upcoming court term.

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

Howard Slugh: In Fulton, the Supreme Court has asked whether it should reconsider a prior decision, Employment Division v. Smith. It should do so and restore robust Constitutional protection to the free exercise of religion.

Smith held that the First Amendment’s protections only apply to laws that target religious practice or are motivated by anti-religious animus. If a court determines that a law is “religiously neutral,” that is the end of the analysis. Religious adherents have no opportunity to demonstrate that the law burdens their faith, and the government has no obligation to prove that the law furthers a compelling interest. On its own terms, Smith’s ruling was not mandated by the text of the Constitution. The Supreme Court should reconsider Smith and reopen the courtroom doors to religious Americans making First Amendment claims.

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?

Slugh: Two important cases are Dalberiste v. GLE Associates Inc. and Small v. Memphis Light, Gas & Water.

Both cases involve employers’ obligation to provide religious accommodations. Title VII of the 1964 Civil Rights Act requires employers to accommodate religious employees unless doing would impose an “undue hardship.” Since 1977, courts have significantly weakened this protection by interpreting undue hardship to encompass anything more than a de minimis burden [editor’s note: a very minor or inconsequential effect].

By ignoring Title VII’s text, courts have weakened protections for Jewish Americans seeking to observe the Sabbath and holidays without the fear of being fired. Under the current understanding of Title VII, something as simple as granting a shift change so that a religious employee can avoid working on the Sabbath might constitute an undue hardship. Some courts have held that even speculative or hypothetical burdens are sufficient to deny a religious accommodation.

Last term, Justices Alito, Thomas, and Gorsuch indicated that the court should “grant review in an appropriate case to consider” abandoning the current narrow interpretation of Title VII. Hopefully, the court considers one of the current cases appropriate.

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

Slugh: The First Amendment contains two clauses intended to protect religious liberty, the Free Exercise Clause and the Establishment Clause. Properly understood, both clauses protect Americans’ right to practice their faith. Unfortunately, a misinterpretation of the Establishment Clause has led some to view these two clauses as being in tension.

Starting with the case Lemon v. Kurtzman in 1971, the Supreme Court adopted a view of the Establishment Clause that contradicts both the plain meaning of that text and the historic practice of the American people. Under Lemon, any government acts that seem to approve of religious practice are constitutionally suspect. This understanding is contradicted by the best scholarship into the original public meaning of that clause. It was originally understood to prohibit the government from coercing Americans into worshiping a faith that conflicts with their conscience, or from meddling in a religion’s internal doctrinal affairs. Lemon also contradicts historic American practice, as the Supreme Court has noted in recent cases concerning legislative prayer and the display of religious symbols on public property.

This mistake had led to the diminishment of Americans’ rights to both free exercise and free speech. In the past, the Supreme Court has given the impression that complying with Lemon could justify burdening other freedoms protected by the First Amendment. Government entities have cited Lemon when denying religious speakers equal access to public forums.

In recent years, the Supreme Court has moved toward repudiating Lemon and realigning its interpretation of the Establishment Clause with its text. Unfortunately, confusion remains in the minds of lower courts and legislators. The Supreme Court should end this confusion by definitively holding that the Free Exercise and Establishment clauses work in tandem to protect Americans’ right to practice their faith as their conscience dictates.

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