Religious freedom at the Supreme Court: Where we are, and what’s next

Written by William C. Duncan

July 14, 2021

Over the past few years – in the face of lamentable congressional impotence and inaction on most difficult policy issues – the U.S. Supreme Court has actively shaped the legal climate for religious freedom.

The court issued important decisions interpreting constitutional and statutory protections for religious freedom in a wide variety of contexts in its recently concluded term, involving cases from fall 2020 to summer 2021. It also announced some cases it will address next term, starting this fall.

In the 2020-21 term, perhaps the most significant decision was Fulton v. City of Philadelphia, in which a unanimous court determined the city of Philadelphia violated the Constitution by seeking to impose on Catholic Social Services a new condition for providing foster care placements (placing children with same-sex couples) that was at odds with the agency’s religious mission. Though the case left some questions about the exact demands of the First Amendment on governments unanswered, the fact that the decision was unanimous is extremely important.

The court was also unanimous in its ruling in Tanzin v. Tanvir that Muslim men who claimed they had been singled out for inclusion on the do-not-fly list for exercising their religious beliefs could sue for financial damages under the federal Religious Freedom Restoration Act. Similarly, the court determined, in Uzuegbunam v. Preczewski, that a college could be held accountable for violating the rights of a student by severely limiting his ability to share his religious beliefs with others. Though the legal issues addressed in these cases were relatively narrow, they will be important for future cases in which people of faith and religious groups seek redress for violations of their religious freedom.

This last term highlighted an important court practice that shapes the law in less obvious ways.

The well-known practice of the court is to accept a petition to consider a lower court decision, solicit written and oral arguments about the legal issues in the dispute, and then issue a decision on these issues, usually after a few months.

But the court is also presented with urgent requests based on lower court decisions that have immediate impact on the parties to a case. For instance, a prisoner on death row may seek the court’s intervention to prevent an execution from being carried out when the prisoner believes his or her conviction is invalid.

These types of decisions can obviously be critical to those making the appeal, but they also suggest to lower courts how certain disputes should be handled. Usually, these decisions are made with little or no explanation, but sometimes the justices explain the reasoning for their timely interventions.

During the last term, the court issued two important decisions of this type, both arising from pandemic restrictions on religious worship. The court prevented New York from enforcing “10- and 25-person occupancy limits” on churches in Roman Catholic Diocese of Brooklyn v. Cuomo. In Tandon v. Newsom, the court similarly stopped enforcement of California’s restriction on at-home worship.

With these decisions, the court made clear that public health restrictions cannot treat religious activities less favorably than similar secular activities.

So, what’s next?

The court has already announced it will rule on a challenge to a Maine law that provides funding students can use for private school tuition but denies that funding if the school provides religious instruction.

The court will also hear a case in which “three Muslim men allege that the FBI targeted them because of their religion by using a confidential informant to gather information about Muslims as part of a counterterrorism investigation.” Though the precise legal issue is what national security information the government can refuse to disclose, it could have implications for religious freedom as well.

Perhaps more interesting is a case the court chose not to accept. It involved a florist who was punished by the state of Washington for referring a same-sex couple who sought wedding floral arrangement services to another florist because of her religious beliefs about the nature of marriage. The case is similar to Masterpiece Cakeshop, which involved a very similar scenario but this time involving a cake decorator. The latter case included some facts that might have led the court to take the baker’s case, but which didn’t apply in the florist’s case, specifically that the Colorado Civil Rights Commission had made inflammatory attacks on the beliefs of the baker.

By what it decides, and does not decide, the court is continuing to clarify (and sometimes not clarify) the scope of religious freedom protections in the law. The inclusion of unanimous decisions among these shaping pronouncements is encouraging.

The unanimity of the court shows that America can indeed chart a course of consensus on difficult policy issues like religious freedom. It also shows Congress that there is a better way forward on such issues than the current approach of avoiding compromise at all costs as part of a partisan performance for the voting and fundraising base.

Americans and their elected leaders should strive to restore the institution of Congress to – in the words of my Sutherland colleague – “its constitutional role of enacting federal law via the consensus-focused compromise that the U.S. Constitutions envisions.” Until that happens, the court’s role in religious freedom disputes will continue to be paramount.

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