February 27, 2020
Religious freedom is not, as it is sometimes caricatured, a clash between religious groups wanting to discriminate and governments trying to eliminate discrimination. Many people from various religions and beliefs, from minority faiths and majority faiths, increasingly find themselves affected by government regulations that threaten or limit their ability to live out their beliefs in the public square.
In January, the U.S. Supreme Court responded to two new religious freedom cases it had been asked to review – taking one of the cases and declining the other. They both illustrate the variety of religious freedom issues the court faces each term. They also illustrate an opportunity Congress has to weigh in (via FFA legislation mentioned below).
The case SCOTUS agreed to hear: Fulton v. City of Philadelphia
The city of Philadelphia stopped referring foster care cases to Catholic Social Services (CSS) because CCS would not place them with same-sex couples. The city had been partnering with CSS to provide foster services since the 1950s. Two foster mothers and CSS argue that the government cannot make eligibility to participate in the foster care system contingent on CSS doing or saying things that are inconsistent with the agency’s religious beliefs. They also argue that the city singled out CSS for exclusion from foster care services.
The case SCOTUS won’t hear: Darrell Patterson, Petitioner, v. Walgreen Co.
The Court declined to take a case involving a pharmacy employee, Darrell Patterson, a member of the Seventh-day Adventist Church, who was fired after he refused to work on Saturday. Though Patterson and the pharmacy had long agreed that he would not have to work on his Sabbath and Walgreens knew he would object to the assignment, he was asked to conduct a Saturday training the company deemed an emergency. Patterson argued that since his employer knew of the conflict before making the demand and could have found others to conduct the training, they had not really accommodated his religious practice.
How Fairness for All Act would help:
The subject matter of both disputes is actually addressed by a bill now pending in Congress – the Fairness for All Act(FFA). (Sutherland Institute has previously issued a statement on the bill.) Two provisions are relevant to the cases described above.
First, the FFA creates a workaround for adoption and foster care placements. The bill would prevent discrimination in adoption and foster care placements by those who receive federal funds. More relevant to the Philadelphia situation, it creates a new funding program, like a voucher system, that would allow parents to receive funding and use it on the provider of their choice. Private providers who accept the services must refer potential clients to other providers if they decline to work with them, but they don’t have to act contrary to their religious mission.
Second, current law requires an employer to “reasonably accommodate” an employee’s “religious observance or practice” unless doing so creates an “undue hardship” on the employer’s business. Unfortunately, the U.S. Supreme Court has interpreted the phrase “undue hardship” expansively. The FFA clarifies the meaning in the new legislation. It would require employers to initiate and engage in an active good-faith effort to accommodate the employee’s beliefs. It defines “undue hardship” to mean “an accommodation requiring significant difficulty or expense.” That way a religious employee will be assured that their employer won’t just refuse an accommodation because it requires a token effort. Rather, employers will be expected to find a way for the employee to act on their beliefs unless doing so creates real difficulties.
The Supreme Court is being called on to resolve these cases with increasing frequency. Usually, doing so means interpreting federal statutes in employment, social services, civil rights, and more. Congress must play a larger role in protecting religious freedom while balancing the interests of others. This branch of government is better suited for balancing various interests than the Supreme Court, which tends to decide on only very specific disputes.
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