The Supreme Court has increasingly exempted religious believers from government regulations, and it is clear by their statements that individual justices on the right think religion is under siege in America.
Earlier this month, the justices spared churches from California’s Covid-19 restrictions on large indoor gatherings. In late November, the justices ruled for New York churches and synagogues challenging coronavirus occupancy limits.
“When a State so obviously targets religion for differential treatment, our job becomes that much clearer,” wrote Justice Neil Gorsuch in a statement in the latest California church case. Joined by Justices Clarence Thomas and Samuel Alito, the statement reinforced conservatives’ warnings in recent months of religious liberty under attack.
At the Supreme Court, a counteroffensive of sorts has been underway, most recently in the context of the coronavirus pandemic, building on a series of religion cases last year.
Critics of the broader trend have pointed out potential harm to non-adherents and other third parties, whether by easing pandemic rules, lifting anti-discrimination laws or forcing states to use taxpayer funds for religious education.
The Supreme Court majority in 2020 invalidated a Montana tax-credit program for private schools that had excluded religious institutions; shielded Catholic schools in Los Angeles from teachers’ job-discrimination claims; and sided with the Trump administration as it enhanced the ability of private employers to opt out of requisite birth control coverage in employee insurance plans based on religious or moral objections.
In that last dispute, one of the final cases of Justice Ruth Bader Ginsburg’s tenure, she argued that the court had abandoned a balanced approach that forbade the religious beliefs of some from overwhelming the rights others.
“Today, for the first time,” Ginsburg wrote in a dissent, “the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Although there have been shifting majorities in some of these fractious cases, they generally break down along ideological lines, as this month’s 6-3 California dispute did.
Writing for the three remaining liberals, Justice Elena Kagan declared, “Under the Court’s injunction, the State must treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.”
Discord at the high court reflects America’s ongoing conflicts over church and state. Yet in a country that has grown more religiously diverse, the majority is deepening a pattern that favors religious conservatives.
The succession of Justice Amy Coney Barrett, appointed by former President Donald Trump in October, for Ginsburg, makes that all the more likely.
Test case about Philly social agency
The rightward trend will be tested in a pending a case, Fulton v. City of Philadelphia, brought by Catholic Social Services and a foster parent who works with the agency. Catholic Social Services, which has contracted with Philadelphia for decades, objected to a new city anti-bias mandate that would force it to include same-sex couples in its foster-parent screening process.
The Supreme Court in 2015 declared a constitutional right to same-sex marriage, but that ruling in Obergefell v. Hodges left open some questions that could arise from religious objectors. Now, Catholic Social Services asserts that Philadelphia’s anti-bias rule impinges its free exercise of religion and private speech.
Oral arguments last November revealed some justices’ fears about government intruding on religion.
“Look, if we are honest about what’s really going on here,” Alito insisted, “it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”
Lawyer Neal Katyal, representing Philadelphia, responded: “Absolutely not.”
Katyal argued that Catholic Social Services merits no exemption from the non-discrimination dictate that agencies must follow and said governments have greater leeway to set such rules when dealing with employees and contractors than when regulating private individuals.
Lawyer Lori Windham, on behalf of the CSS challengers, told the justices, “Philadelphia is refusing to place children with loving mothers, like Sharonell Fulton … just because they chose to partner with an agency who shares their faith.”
Windham also argued that other foster-child agencies in Philadelphia work with same-sex couples so the CSS’ practices do not prevent same-sex couples from becoming foster parents.
Lower court judges sided with Philadelphia, saying the city was enforcing a neutral policy. They grounded their decision in a 1990 Supreme Court case that makes it difficult to raise free exercise claims against valid, neutral laws.
But the Philadelphia case gives the court a chance to reconsider that precedent.
The 1990 ruling in Employment Division v. Smith requires religious believers to abide by generally applicable regulations. The case began when two Oregon men who engaged in the sacramental use of peyote were fired from their job and denied state unemployment benefits because of illegal drug use.
In oral arguments in the foster parent dispute, new Justice Barrett suggested she was not ready to outright reverse that 1990 precedent. Yet she also expressed skepticism for the principle that judges should consider the harm that a religious exemption would cause a third party.
She referred to “friend of the court” advocates pressing the principle and questioned whether it would cover action that injures a third party “even slightly.”
Church-state scholars who submitted an amicus curiae brief that emphasized the costs of a possible CSS exemption to same-sex couples say the third-party principle has its own limits.
Conservative justices, however, have demonstrated that the harms distinctly in their sights these days are those that would fall on religious believers and their worship practices.