What do a Michigan funeral director, low-income students in Montana, a religious adoption agency in Pennsylvania, a Washington state florist, and an Idaho construction worker have in common? All are asking the U.S. Supreme Court to clarify the scope of the religious liberty guaranteed them by the U.S. Constitution and federal law. Two have cases pending before the Supreme Court in its new term beginning Oct. 7, 2019. The rest are asking the court to hear their cases.

IN MICHIGAN:

The case, which has been consolidated with two others, affects religious liberty questions only indirectly but is extremely important for religious organizations and business owners who want to conduct their business in accordance with their deeply held beliefs. In the Michigan case, the federal government sued a funeral home for expecting a male employee to comply with a sex-specific dress code when the employee wanted to dress in female clothes at work. The federal Equal Employment Opportunity Commission interpreted the phrase barring discrimination “on the basis of sex” in the 1964 Civil Rights Act to include the categories of sexual orientation and gender identity. (The EEOC has changed position and supports the employer, so the ACLU is now pressing the employee’s case.)

WHY DOES IT MATTER?

This case is significant for many reasons, not least because it gives the court an opportunity to rein in unelected federal bureaucracies who attempt to make law through creative interpretations of statutes passed by Congress. Congress has previously considered adding sexual orientation and gender identity as protected categories in federal law, and if it makes that determination, it can consider input from employers, religious organizations, LGBT groups and others about how to change the law without doing collateral damage to employers who want to ensure their employees support the mission of the organization. Having a government agency or a court make this decision does not allow the same kind of careful balancing of interests.

IN MONTANA:

This case involves a Montana scholarship program designed to help low-income students. The program was neutral as to religious and non-religious private schools, but the Montana Department of Revenue determined the program violated a state law against public support for religion (a law with an anti-Catholic pedigree). The Montana Supreme Court invalidated the entire program and families are now asking the Supreme Court to strike down laws that prevent religiously neutral programs which have the effect of providing a benefit to people of faith – in other words, to require the states to treat religious organizations and people of faith exactly as they do all other citizens. 

WHY DOES IT MATTER?

The court previously invalidated a state’s decision to single out religious schools by making them ineligible to receive a safety grant available to all others. This case provides the court an opportunity to continue the process of restoring neutrality to state treatment of religion. The Supreme Court has not yet decided whether it will formally hear the other cases.

IN WASHINGTON:

The Washington florist found guilty of discrimination faces potentially crippling fines because she conveyed to a customer that she would be willing to create flowers for him but would stop short of facilitating a same-sex marriage ceremony contrary to her faith.

IN PENNSYLVANIA:

Foster moms and Catholic Social Services are pushing back against a Philadelphia threat to terminate the agency’s contract with the city to provide adoption placement services because the agency refuses to endorse the city’s position on marriage and abandon its own.

IN IDAHO:

A construction worker was denied a license to work as an independent contractor because he would not provide a Social Security number because doing so is contrary to his religious beliefs.

WHY DOES IT MATTER?

Each of these cases provide the court an opportunity to make clear that all levels of government must appropriately accommodate the religious exercise of their citizens and not single them out – or the churches and other religious organizations to which they belong – for disfavored treatment. These principles are clearly what was intended by the Framers of the Constitution when they specifically constrained government from abridging religious exercise, but that aspiration must be made real. This term, the court can make major strides toward doing so.