An epic Supreme Court showdown over religion and LGBTQ rights ends in a whimper

“Fulton v. City of Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, was widely expected to be a sweeping victory for the religious right, and a correspondingly significant defeat for LGBTQ rights. Instead, the Court’s opinion dodges nearly all of the important issues raised by the case.
It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight to overrule a landmark Supreme Court decision from over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.”

“The plaintiffs in Fulton, moreover, also asked the Supreme Court to overrule its seminal decision in Employment Division v. Smith (1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.

But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.

The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.”

“this argument relies solely on the text of Philadelphia’s particular ordinance.”

It’s Not Just Young White Liberals Who Are Leaving Religion

“Compared to the U.S. population overall, nonreligious Americans are younger and more Democratic-leaning. But the number of Americans who aren’t religious has surged in part because people in lots of demographic groups are disengaging from religion — many nones don’t fit that young, liberal stereotype. The average age of a none is 43 (so plenty are older than that). About one-third of nones (32 percent) are people of color. More than a quarter of nones voted for Trump in 2020. And about 70 percent don’t have a four-year college degree.”

The Christian right is racking up huge victories in the Supreme Court, thanks to Amy Coney Barrett

“As the Court held in Employment Division v. Smith (1990), religious objectors must follow “neutral law[s] of general applicability.”

Ever since Justice Amy Coney Barrett joined the Court last fall, however, the Supreme Court has been rapidly dismantling Smith…the Court fired a bullet into Smith’s heart. It ruled that people of faith who want to gather in relatively large groups in someone’s home must be allowed to do so, despite the fact that California limits all in-home gatherings to just three households.

Although the Court’s new 5-4 decision in Tandon v. Newsom doesn’t explicitly overrule Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law that Smith is basically a dead letter.

The Court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19.

The Court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.”

““California treats some comparable secular activities more favorably than at-home religious exercise,” the majority opinion in Tandon claims, “permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

As Justice Kagan explains in her dissent, there are three very good reasons why a state might treat these secular activities differently than a gathering in people’s homes. First of all, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” and the people at social gatherings are “more likely to be involved in prolonged conversations.”

Additionally, “private houses are typically smaller and less ventilated than commercial establishments,” and “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”

But, ultimately, none of these distinctions mattered to the Court’s majority. The practical impact of Tandon is that, so long as many religious objectors can cite any secular activity that is treated differently than a religious activity — no matter how distinct those two activities may be — this Supreme Court is very likely to grant the objector an exemption.

Tandon is not an especially surprising decision — the Court reached a similar conclusion last November in Roman Catholic Diocese of Brooklyn v. Cuomo, a decision that I described at the time as a “revolutionary victory” for religious conservatives.”

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 Lukumi. Lukumi 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.”

The Supreme Court hands down a loss for rogue law enforcement officers — and a win for the religious right

“The Supreme Court’s 8-0 decision in Tanzin v. Tanvir on Thursday is almost certainly correct as a matter of law. Justice Clarence Thomas’s majority opinion was unanimous (Justice Amy Coney Barrett, who joined the Court too late to hear this case, did not participate), and it relies on a fairly straightforward reading of a federal religious liberty law.

Tanzin holds that federal officials may be personally liable if they violate an individual’s religious rights — a ruling that could benefit many religious liberty plaintiffs with genuinely heartbreaking claims against government officials, including the plaintiffs in this case. But it also potentially hands a new weapon to conservative culture warriors who seek broad exemptions from federal law.”

“The plaintiffs are Muslims who claim that FBI agencies placed them on the no-fly list in retaliation for the plaintiffs’ refusal to act as informants against other members of their Muslim communities. One of these plaintiffs, Muhammad Tanvir, alleged that he was unable to see his ailing mother in Pakistan, and that he had to quit his job as a long-haul trucker because he could no longer fly home after a one-way delivery.

The Court’s decision in Tanzin means that these Muslim plaintiffs will be allowed to seek money damages from the FBI agents who allegedly violated their religious rights — although it is possible that the agents will escape liability because of a doctrine known as “qualified immunity.””

“In recent years, the Court’s conservative majority has also appeared very eager to expand the rights of religious conservatives to sue government officials, and some of the Court’s recent decisions suggest that such officials violate the law if they commit fairly minor slights against certain people of faith.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), for example, the Court scolded a state civil rights commissioner who made the objectively true statement that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.”

So one implication of Tanzin is that religious conservatives may now be able to seek money damages from federal officials for violations that, until recently, the courts would have viewed as entirely benign.

The policy implications of Tanzin, in other words, are likely to spark ambivalence among liberals and conservatives alike. Outside of the religious liberty context, conservative judges have generally been hostile to efforts to make law enforcement officers personally liable for their illegal actions. Liberals, meanwhile, will undoubtedly have sympathy for the Tanzin plaintiffs. But the Court’s decision is also likely to empower religious conservatives who seek exemptions from anti-discrimination laws and other policies favored by liberals.”

“The good news is that FBI agents and other law enforcement officers are likely to think twice before committing violations similar to the ones alleged by the Tanzin plaintiffs. But government officials may become more cautious about enforcing civil rights and other laws against religious objectors — because those officials could potentially pay a personal price if they do so.”

Religious conservatives have won a revolutionary victory in the Supreme Court

“For the past six years, the Supreme Court’s right flank has wanted to revolutionize the law governing so-called “religious liberty” cases, in which a plaintiff who objects to following a particular law on religious grounds seeks an exemption from that law.

Late on Thanksgiving eve, in a decision handed down while much of the country was already asleep, the Court made this vision a reality. Roman Catholic Diocese of Brooklyn v. Cuomo, a decision allowing some houses of worship to operate in defiance of New York state’s rules seeking to limit the spread of Covid-19, is one of the two most significant religion cases of the past 30 years, and may prove to be one of the most important religion decisions in the Court’s history.”

“Under the old rules, religious objectors typically could not seek exemptions from the law if granting them an exemption could harm people who do not share their faith. And the old rules were much more concerned with preserving equality between secular and religious individuals than with giving special advantages to people of faith. In the business context, for example, the Court was primarily concerned with ensuring that religious business owners did not obtain legal exemptions that would give them a leg up over their competitors.”

“Hobby Lobby established a strong presumption that when a religious objector seeks an exemption from a federal law, the objector will get that exemption barring unusual circumstances.

Yet, for reasons explained below, Hobby Lobby only benefited religious objectors who sought exemptions from a federal law. State law still applied with considerable force against religious objectors, even after Hobby Lobby.

The practical effect of Roman Catholic Diocese is that it extends the Hobby Lobby regime to a wide range of cases involving religious objections to state law. There are still technical differences between the law governing plaintiffs who seek exemptions from a federal policy and those who seek to avoid state law, but the practical differences are now thin or even potentially nonexistent.”

“The implications of this doctrinal revolution are profound. Among other things, the Court is currently weighing whether religious objectors have a right to defy laws barring discrimination against LGBTQ individuals. Subsequent cases could potentially give religious conservatives a right to engage in gender discrimination, or to violate a bevy of other laws.

And, as Roman Catholic Diocese involves a challenge to state rules seeking to prevent the spread of a deadly disease, religious objectors may even prevail when their claims could endanger human life.”

“As Justice Ginsburg explained in dissent, until Hobby Lobby, “no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”

Hobby Lobby was also significant for another reason. Rather than applying the watered-down version of the compelling interest test required by Sherbert, Hobby Lobby applied the full force of strict scrutiny to the federal birth control regulation — a test that, as Justice Samuel Alito noted in his majority opinion, is “exceptionally demanding.”

Thus, Hobby Lobby effectively abandoned Lee’s holding that businesses generally must comply with the law, at least with respect to federal laws. It also held that plaintiffs with religious objections to a federal law benefit from the strong version of strict scrutiny applied to race discrimination cases — not the less rigorous test created by Sherbert.”

“the state effectively banned all public gatherings where large numbers of people gather in auditorium-like settings. It then gave a special exemption to houses of worship that allowed them to have small, limited gatherings. Whatever you think of that policy, it does not single out places of worship for inferior treatment. Indeed, it does the opposite.

Nevertheless, a majority of the Supreme Court struck down New York’s headcount limits on houses of worship because the state’s rules treat those institutions less favorably than businesses that do not involve public gatherings in auditorium-like settings.

“In a red zone, while a synagogue or church may not admit more than 10 persons,” a majority of the justices explained in an unsigned opinion, “businesses categorized as ‘essential’ may admit as many people as they wish.” The opinion then lists several examples of “essential” businesses, including “acupuncture facilities, camp grounds, [and] garages.”

Yet, while it is true that garages and acupuncturists are subject to different rules than churches, the reasons are hardly arbitrary. As Justice Stephen Breyer writes in dissent, “members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other.”

Large groups of people typically do not gather in an acupuncture facility for hours at a time and sing. But they do engage in such potentially dangerous activity in churches and many other houses of worship. So it makes sense that places of worship should be treated differently than businesses that bear little, if any, resemblance to those places of worship.

The point is this: Justice Breyer’s dissent suggests that a state law is a “neutral law of general applicability” so long as that law treats religious institutions the same way as similar secular institutions. The majority opinion, by contrast, suggests that a law is suspect if a court can find any example of a secular institution that is treated differently than a religious institution.”

“the implications of this decision are likely to be profound. It means that, when someone objects to a law on religious grounds, they will typically be exempt from the law unless the law survives strict scrutiny, because it is very easy to find secular exemptions to even the most unobjectionable laws.

A state’s ban on murder, for example, may have an exemption for people who kill in self-defense. State bans on animal cruelty typically permit livestock to be slaughtered for food. Laws banning individuals from possessing machine guns still permit members of the military to carry such weapons as part of their service. The tax code is absolutely riddled with provisions allowing people not to pay some part of their federal taxes if, for example, they have a mortgage or are raising a child.

Does this mean that the Supreme Court is likely to permit religious objectors to kill? Or to refuse to pay taxes? Or to allow them to torture animals (provided that the state’s ban on animal cruelty doesn’t single out people of faith for inferior treatment)? Most likely not. Among other things, such laws would still be enforceable so long as they survive strict scrutiny — meaning that the law uses the “least restrictive means” to advance a “compelling governmental interest.”

But the new approach announced in Roman Catholic Diocese suggests that any law is subject to strict scrutiny if a religious objector can point to any exemption to that law. And, as Winkler’s research shows, the overwhelming majority of laws subject to full-bore strict scrutiny fail that test.”

The Supreme Court stripped thousands of teachers of their civil rights

“The upshot of Justice Samuel Alito’s opinion for a 7-2 Court is that thousands of teachers at religious schools are no longer protected by anti-discrimination laws. If one of them is fired for being Black, or gay, or a woman, the law may do nothing to intervene.

The case involves the “ministerial exception” to civil rights laws. As a general rule, religious institutions have total control over whom they employ as “ministers.” That means that if a church wants to fire its preacher because of that preacher’s race or gender, it may do so, even though such discrimination ordinarily is illegal.

As Alito explains, the Constitution protects “the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Implicit in this right is a certain “autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.””

“a teacher at a religious school whose duties include religious instruction qualifies as a “minister,” and is therefore unprotected by anti-discrimination law.”

“Under Alito’s decision, this fairly small amount of religious instruction — a little more than three hours a week — was enough to trigger the ministerial exception. “Implicit in our decision in Hosanna-Tabor,” Alito writes, “was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.””

Ending a Life That Has Not Begun—Abortion in the Bible

“Choosing to ban abortion in cases where rape caused pregnancy would be difficult to argue as biblically supported, as the Book of Numbers prescribes a potion that should cause sterility and perhaps even abortion as the enforced consequence of infidelity. As a result, it is hard to argue that the Bible always speaks out against abortion.”

“All in all, the Bible does not speak as clearly about abortion as some politicians might wish. Where it does speak about pregnancy and abortion, the God-given character of human life is an important point of departure. On the one hand, there are passages that state how God has plans for some special human beings, his prophets, already during their stay in their mother’s womb. This implies that already at that stage God had selected them as the persons they would become. On the other hand, some passages indicate that human life was only thought to begin either at the moment the fetus was fully developed or even up to a month after the baby’s birth. It is therefore difficult to refer to anything like “the Bible’s teaching on abortion.” The Bible contains a diverse collection of views on the origin of human life. Any attempt to base a political strategy on the Bible should always indicate, for honesty’s sake, that such a “biblical view” is based on a conscious choice of passages and interpretations by each individual speaker.”