Religious liberty litigators have won a series of cases that would have seemed like long shots a generation ago…[but] the Court, like public opinion, is still a tough sell on a range of questions involving religious believers’ requests…

This is the assessment of the strength of religious freedom after the Supreme Court’s recent rulings from Walter Olson, senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

During the Supreme Court’s 2020 term, religious freedom cases included the ability to use public scholarship money at private religious schools, the ability of religious schools to choose teachers that will share the religious message, and an exemption for religious organizations from the contraception mandate of the Affordable Care Act.

Near the end of the Court’s term, Olson wrote an article pointing out how successful religious freedom has been in the Supreme Court in recent years. He discusses this in more detail in the following Q&A (modified for clarity) with William Duncan, religious freedom policy fellow at Sutherland Institute. 

William Duncan: In your piece you argue that “as a legal matter, religious liberty is in a stronger position today in American law than some of its proponents seem prepared to concede.” What are the reasons for optimism on this point?

Olson: Religious-liberty litigators have won a series of cases that would have seemed long shots a generation ago. Central are the cases on religious groups’ claims to equal access to public program funds and facilities, including the underrated 2017 win on access to a Missouri playground-resurfacing program and this year’s massive win in Espinoza on access to school choice programs. Not too long ago, separationist litigators [those arguing for a stricter separation between church and state] might have aimed to get some programs of this sort struck down as unconstitutional; today’s court not only approves them but even recognizes a constitutional right for churches to participate in them, if the program exists at all.  

Another important case, if only because the liberal justices joined the conservatives in a unanimous ruling, was Hosanna-Tabor (2012) on churches’ inherent First Amendment right to hire religious teachers without being second-guessed by Washington. This year the Our Lady of Guadalupe and St. James School cases tested whether this principle would be given a broad reading, bolstering church autonomy as a matter of substance, or a narrower and more formal reading. Only two liberal justices, [Ruth Bader] Ginsburg and [Sonia] Sotomayor, peeled away from the 7-2 majority in favor of the churches, and even they emphasized that they were not disputing the Hosanna-Tabor principle, just its application in these cases.  

Meanwhile, Masterpiece Cakeshop has provided a means to challenge administrative procedures in which religious participants were treated with prejudice or disdain.  

Duncan: Your article was written before the more recent religious freedom decisions by the court which seem to confirm your major point. What additional observations do you have about those decisions?

Olson: As Casey Mattox has pointed out, this year’s religion decisions mostly avoid mention of the central precedent that dominates the field, Employment Division v. Smith (1990). Is Smith wobbling? The tide of opinion among conservative religious litigators is against it, and there are probably at least three votes on the court already to overturn it. 

As for Bostock, the gender employment case, right or wrong, it wasn’t a religious liberty case. It was also a case of statutory interpretation, in an area where Congress can (and I suspect would have acted fairly soon to) clarify the law in a liberal direction. Notice that many of the unambiguous wins for religious liberty lately are coming in constitutional law. 

Duncan: Are there still religious freedom concerns that we should be paying attention to or holes in the existing law?

Olson: The court, like public opinion, is still a tough sell on a range of questions involving religious believers’ requests for exemption from or accommodation in discrimination rules. One common denominator of Masterpiece Cakeshop and Espinoza is that anti-discrimination principles are so dominant in American law and culture these days that when religious interests win, it is often by hitching their cause to them rather than coming across as seeking to block them.   

On the adoption cases, I am rooting for a pluralistic and libertarian approach that honors groups with a sincere interest and track record in finding homes for kids. I find the fact pattern in the New Hope case, just green-lighted for First Amendment litigation by the Second Circuit, the most compelling. (The agency doesn’t take public funds or exercise public powers; New York wants to close it down anyway because it insists on operating by its lights.) But the case that will reach the high court first is next fall’s Fulton v. Philadelphia, which is complicated by the close intertwining of Catholic Social Services and city child welfare efforts. 

On pandemic closure rules, I was among those who thought Roberts and the liberals had the stronger of the argument back in May on the California case, South Bay United Pentecostal. But add me to the list of those baffled that the lines didn’t budge in the recent successor case from Nevada, Calvary Chapel v. Sisolak. Back then, I found Roberts’ use of comparators more persuasive – the risk from churches isn’t much like the risk from pet groomers or hardware stores. But casinos? Persons who gather at roulette or craps tables for hours are likely spreading more risk than those attending a service in distanced pews. Strange that the church didn’t win, and strange too that the majority wrote no opinion, given the importance of the topic.