August 19, 2020
Is the U.S. Supreme Court ready for a major overhaul when it comes to religious freedom? Howard Slugh, founder and general counsel of the Jewish Coalition for Religious Liberty, and a constitutional lawyer in Washington, D.C., says the answer might be yes:
Religious Americans have long considered Smith [a case that interpreted the First Amendment religious liberty protections very narrowly] one of the Supreme Court’s most harmful decisions and would consider revisiting that case a major victory. That outcome is [now] a real possibility because the foundations for overturning Smith have been laid over the last 30 years.
We asked Slugh about the recent Supreme Court religious freedom cases and more.
William Duncan, Sutherland Institute religious freedom policy fellow: What are your general impressions of the Supreme Court’s religious freedom decisions in the 2019-20 term?
Slugh: The theme of the term was incremental change. The Roberts court has adopted a slow step-by-step approach to building legal doctrine. If religious liberty advocates expect a sudden landmark decision that dramatically changes the legal landscape, we will be disappointed. But, at the same time, we also should not expect any dramatic defeats. The Supreme Court’s 2019 term produced important steps forward for religious liberty that advocates should aim to advance in the future.
The three most significant religious liberty decisions were Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Morrissey-Berru, and Little Sisters of the Poor v. Pennsylvania. Each of those decisions represented a modest but meaningful step forward for religious liberty. Espinoza and Guadalupe built on foundations laid by previous cases and left unresolved questions that would have to be decided in future cases. Little Sisters of the Poor was an even more modest decision that is likely to offer only a temporary reprieve – requiring additional decisions in the near term to further develop the law it began to establish.
In some ways, Espinoza signified the culmination of a long doctrinal journey. At the beginning of that trek, many people believed that the so called “separation of church and state” – language that does not appear in the Constitution – required states to exclude religious organizations from public funds simply because of their faith. After Espinoza, it is settled law that, far from requiring exclusion based on religious identity, the Constitution unequivocally prohibits such discrimination. On the one hand, that seems like the end of a journey. On the other hand, Espinoza left significant questions unresolved.
Justice Roberts left open the related and possibly distinct question of whether a government entity could engage in “discrimination against religious uses of government aid.” Justice Roberts concluded that the court would answer that question in a future case.
In Guadalupe, the Supreme Court adopted the flexible approach and determined that all teachers entrusted “with the responsibility of educating and forming students in the faith” qualified as ministers. However, the court left open the question of how this functional test would apply to many other employees.
The holding in the Little Sisters case was so narrow that it is unlikely to resolve the litigation between Pennsylvania and the Little Sisters. The court held that HHS had the power to grant the Little Sisters an exemption from that agency’s regulation obligating employers to provide insurance that includes free access to abortion inducing drugs. Several states sued HHS arguing that it lacked authorization to create an accommodation through the normal rulemaking process. According to the states, HHS had to continue enforcing regulations it considered illegal unless a court ordered it to stop. The court rejected this argument, which I frankly considered frivolous.
While the court found that HHS had the authority to create an exemption, it did not address any of the related questions that follow from that conclusion. For example, it did not determine whether the actual exemption HHS chose to create was substantively permissible. The court established that HHS could sometimes create accommodations, but it did not say whether this particular accommodation was permissible. Nor did it affirm HHS’s determination that it was legally required to create an exemption in order to avoid violating the Little Sisters’ religious liberty. This means that, if Joe Biden is elected president, his HHS can revoke the exemption by determining that the current HHS was mistaken and that no such exemption was necessary. If that occurs, the Little Sisters will have to sue in order to have the court decide whether the Trump or Biden HHS was correct.
This term was marked by modest victories for religious liberty that were certainly better than defeats, but it is understandable why supporters of religious liberty were left wanting more.
Duncan: Which decision is likely to have the most impact and why?
Slugh: From a practical perspective, Espinoza is likely to have the most impact on members of the Jewish community. Many Jewish parents, especially Orthodox parents, feel compelled to send their children to religiously affiliated schools. Such help to prepare Jewish children to lead religiously observant lives and to step into leadership positions in the Jewish community. Unfortunately, such schools tend to be extremely expensive, and in recent years, Jewish institutions have labeled the high cost of education a crisis. Scholarship funds such as those at issue in Espinoza can mean that some Jewish parents may no longer have to choose between their families’ financial stability and their children’s religious education.
Duncan: What issues do you think are most important for the court to consider going forward?
Slugh: Next term, in the case Fulton v. City of Philadelphia, the Supreme Court will consider whether it should revisit the 1990 case Employment Division v. Smith. That case held that the First Amendment cannot invalidate generally applicable laws that happen to impose substantial burdens on religious exercise. So, for example, the Free Exercise Clause offers no protection to religious parents who object to having autopsies performed on their deceased children, if such autopsies are required by religiously neutral laws. Religious Americans have long considered Smith one of the Supreme Court’s most harmful decisions and would consider revisiting that case a major victory. That outcome is a real possibility because the foundations for overturning Smith have been laid over the last 30 years.
Smith was premised on the fact that it would be too difficult for the Supreme Court to determine whether to grant religious accommodations to generally applicable laws and that attempting to do so would lead to anarchy. Congress immediately recognized just how harsh and restrictive Smith would be, and, in 1993, it implemented a legislative fix – the Religious Freedom Restoration Act (“RFRA”). In some circumstances, RFRA forced the Supreme Court to scrutinize generally applicable laws, the very determination that Smith predicted would be too difficult. The Supreme Court itself has adopted exemptions to Smith, such as for cases where there is evidence that religious animus motivated a generally applicable law.
In light of those exceptions, the Supreme Court has a nearly 30-year-long track record of applying the Free Exercise principles to religiously neutral laws. The court has proven itself quite capable of performing this task, and chaos has not ensued. Smith’s fears were unfounded.
Last year, Justice Alito, writing for four justices, recognized that Smith “drastically cut back on the protection provided by the Free Exercise Clause” and dissuaded litigants from focusing on Free Exercise claims. He implied that the court might be ready to revisit Smith. Soon thereafter, the court formally agreed to decide that question during its 2020 term.
As noted above, the Roberts court’s trademark is making incremental changes to the law. Nearly 30 years’ worth of jurisprudence undermines Smith’s rationale. Revisiting Smith’s harsh, atextual, ahistoric rule would be an important victory for religious liberty but it would mark the culmination of a 30-year process rather than a radical innovation – and that’s right in Justice Roberts’ comfort zone.
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