The Supreme Court’s confusing new “religious liberty” order, explained

“Until recently, the Supreme Court’s precedents drew a distinction between religious discrimination cases, where religious plaintiffs typically prevailed, and cases where religious people or institutions were treated the same as comparable secular institutions or individuals.

Under the Supreme Court’s decision in Employment Division v. Smith (1990), state laws may be enforced against people who object to those laws on religious grounds so long as the challenged policy is a “neutral law of general applicability.” Thus, so long as a state law does not single people of faith out for inferior treatment, such people of faith must comply with the law. (A federal statute applies a stricter rule to federal laws that burden religious exercise, so religious objectors are much more likely to prevail in suits against the federal government.)

If a state or local government discriminates against a particular religion or against religious institutions generally, however, such discrimination will typically be struck down. The seminal Supreme Court case involving religious discrimination is Church of the Lukumi Babalu Aye v. City of Hialeah (1993), which answered the question of how courts should approach laws that appear to be neutral on their face, but were enacted with a discriminatory purpose.”

Lukumi established that, when a law that appears neutral on its face contains an array of exemptions, those exemptions can provide evidence that the real purpose of the law is to discriminate on the basis of faith. Several justices, however, believe that Lukumi does not go far enough. They’ve claimed that the presence of exemptions in an otherwise neutral law isn’t just evidence that the purpose of the law is religious discrimination, but that it is often definitive proof of discrimination.

Thus, for example, in his dissent from the Court’s decision not to hear Stormans v. Wiesman (2016), Justice Samuel Alito claimed that a Washington state regulation that requires pharmacies to “deliver lawfully prescribed drugs or devices to patients” was constitutionally suspect because it included a number of secular exemptions — the regulation permitted a pharmacy to refuse to fill a prescription if it did not accept the patient’s insurance, for example — but no exemption for religious pharmacy owners who object to dispensing birth control.

Alito, in other words, sought to blur the line between religious discrimination cases and cases involving a “neutral law of general applicability” by defining the concept of religious discrimination so broadly that an enormous swath of state laws become suspect.

The Court’s decision in Roman Catholic Diocese, the case involving New York’s restrictions on attendance at worship services, largely embraced Alito’s vision. Although these restrictions were quite severe, they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to places of worship. As a lower court that upheld New York’s restrictions explained, “public gatherings with scheduled starting and ending times such as public lectures, concerts or theatrical performances” must “remain closed entirely” in the parts of New York where strict limits on houses of worship were in place.

But Roman Catholic Diocese held that it does not matter whether businesses that are similar in character to houses of worship are subject to less restrictive rules. What matters is whether any secular business is subject to lighter restrictions. If the state only permits churches to admit 25 people, but it permits grocery stores to admit many more people, then the state’s actions are potentially suspect.

Roman Catholic Diocese, in other words, is a tremendous expansion of the Court’s holding in LukumiLukumi called for a fact-specific inquiry into the real reason why a state or local government enacted a policy that burdens people of faith, and the purpose of that inquiry was to sniff out laws that “stem from animosity to religion or distrust of its practices.” Roman Catholic Diocese, by contrast, presumes that the state engaged in unconstitutional discrimination if a religious institution is treated differently from secular ones — regardless of why the institutions are treated differently.”

“Before Roman Catholic Diocese, it was clear that the Danville Christian plaintiffs should have lost their case. Gov. Beshear’s order closes all primary and secondary schools, regardless of whether those schools are religious or secular. Whatever the wisdom of that policy, it’s a neutral law of general applicability. It does not treat religious schools any differently than similar secular schools.

After Roman Catholic Diocese, however, it’s far from clear that the Danville Christian plaintiffs should lose. As Justice Neil Gorsuch points out in a dissenting opinion, Kentucky allows a wide array of secular institutions to remain open, including preschools, universities, movie theatres, and bowling allies.”

“In any event, because the Court’s decision in Danville Christian places such heavy emphasis on the fact that Beshear’s order is about to expire, that decision is unlikely to have very many doctrinal implications. Once the pandemic is over, the doctrinal shifts laid out in Roman Catholic Diocese will remain, while Danville Christian is unlikely to be cited very often by future courts.

But Danville Christian is a strange decision. And it suggests that, at least while Covid-19 is still raging, some key members of the Supreme Court may be uncomfortable with the full public health implications of their decision in Roman Catholic Diocese.”

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