January 5, 2022
The Supreme Court raised “a firewall around religious liberty” during the first year of the pandemic, wrote religious liberty scholar Robin Fretwell Wilson in the Deseret News recently. She was referring to the court’s cases on the closure of worship services in 2020. (Wilson was a contributor to a Sutherland Institute publication, Religious Liberty: Striving for Inclusion.)
Supreme Court decisions of 2021 continued a streak of strong protections for religious freedom – not only in the context of pandemic restrictions, but also in social services, education and employment.
So what will 2022 hold?
The court has already heard arguments in two cases and will issue opinions this year.
The first involves a prisoner on death row who is challenging a decision by Texas officials to limit his contact with a chaplain at the time of his execution. The inmate is hoping the court will apply rulings from previous death penalty cases that protected religious preferences of inmates.
The second involves a challenge to Maine restrictions on the use of state student aid funds at religious schools. Here, parents are trying to get the court to extend its previous cases on public aid availability to religious schools.
Later this month, the court will hear arguments in a case brought by a religious organization that was denied the opportunity to display its flag as part of a Boston city program where organizations can fly flags on a dedicated flagpole. The organization has argued that the denial was motivated by discrimination based on its religious mission.
The string of religious freedom cases the court has issued in recent years will also likely have implications in the lower courts during this year. The Supreme Court has directed an appeals court in New York to reconsider a case brought by the Roman Catholic Diocese of Albany challenging the state’s mandate that employers cover abortions in their employee insurance policies.
It has also directed a Minnesota appeals court to reconsider its denial of relief to Amish plaintiffs who challenged health regulations that would have required the Amish to adopt technologies at odds with their beliefs. The case involves an important question of what level of justification the government should have to provide when its policies impinge on religious practice.
On the legislative front, federal bills with implications for religious freedom have been pending without action for years. There is no indication that situation will change this year, even though the steady stream of controversies faced by the Supreme Court suggests legislative guidance would be helpful.
With the court having built a “religious freedom firewall” in 2021, it will be interesting to observe how it builds upon it in 2022. The pandemic has shown the ongoing need for legal accommodation of the religious expression that is a right under the First Amendment. The court, at least, seems to be responding to that need. Congress and state policymakers should follow suit.
This case should establish whether the state can require creative professionals and businesses to send messages even if it does not express antipathy to the professional or business beliefs.
It’s easy to follow the path of viewing someone who disagrees with you as short on intelligence or morality. It takes depth of character to take the road less traveled.
There needs to be a way to correct decisions at odds with the underlying laws being applied. The court can and does have options to prevent (or correct) this type of result.