On Thursday, the U.S. Supreme Court will issue a list of cases initially accepted for arguments in the 2018-19 session. From close to 2,000 petitions, the court will accept only a handful. And until a ninth justice is seated to replace retired Justice Anthony Kennedy, experts predict the eight-justice court could steer clear of important cases with First Amendment implications, many united by one question: Will America’s pluralistic society tolerate public expressions of Christian faith?
Two cases under consideration charge the justices with defining the word “sex” in Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “based on race, color, religion, sex, and national origin.” The legal standard requires judges defer to a statute’s intended meaning when it was drafted. But some federal appellate judges, zealous to advance the LGBT rights agenda, have ruled “sex” includes sexual orientation and gender identity.
In R.G. & G.R. Harris Funeral Home v. EEOC, Detroit-based funeral home employee Anthony Stephens filed a complaint with the Equal Opportunity and Employment Commission claiming the owners of the business said he could not dress like a woman while at work. Stephens claimed protection under Title VII as a transgender employee. But the Christian owners of the funeral home believe humanity includes only males and females as God created them, according to Genesis 5:2. The 6th Circuit ruled in Stephens’ favor, and the funeral home petitioned the high court.
Similarly, in Altitude Express v. Zarda, Donald Zarda, now deceased, sued the owners of New York–based Altitude Express, claiming he was fired for being homosexual. The owners of the sky diving company said they fired him for making inappropriate comments to a customer. The 2nd Circuit ruled for Zarda, interpreting “sex” to include sexual orientation, and the company appealed.
In a third case of dictionary redo not yet before the court, the 3rd Circuit expanded the meaning of sex to include gender identity as it applies to Title IX, the federal education nondiscrimination statute. Attorney Randy Wenger, who argued Doe v. Boyertown Area School District before the circuit court, told me the case could be appealed to the U.S. Supreme Court this fall.
In a case regarding religious symbols, the American Humanist Association sued for the removal of a 1925 World War I memorial, the Bladensburg Peace Cross. The cross’s defenders want the Supreme Court to recognize the historic context of the nation’s religious displays. A ruling against the Bladensburg Peace Cross would threaten the display of dozens of similar monuments on government land, including at Arlington National Cemetery just outside the nation’s capital, said Kim Colby, director of the Christian Legal Society’s Center of Law and Religious Freedom.
Atheists’ objection to Christianity’s historical influence includes the use of neutrally applicable government grants to preserve historic buildings, including churches. In FFRF v. Morris County Board of Freeholders, Morris County, N.J., is asking the court to defend its community’s historic sites.
Public prayer is also under consideration. The 9th Circuit ruled in Kennedy v. Bremerton School District that public school employees cannot pray at school events “if anyone can see them,” said Kelly Shackelford, president of First Liberty, who is representing former high school football coach Joe Kennedy, who appealed to the Supreme Court.
“I would love to see them take that case,” Colby told me. “I think teachers in the public schools do not have adequate protections for their religious expressions.”
Two other cases address unfinished business left in the wake of the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. Christian business owners who refused to create gay-affirming products in Klein v. Oregon Bureau of Labor and Industries and Lexington–Fayette Urban County Human Rights Commission v. Hands On Originals are contending for their rights to operate their business according to their faith.
“These cases may need to be addressed under [the Religious Freedom and Restoration Act] or the Free Exercise Clause,” Walter Weber, senior counsel for the American Center for Law and Justice, told me. “I cannot predict how soon the court will be willing to grapple with this, but I do think it is inevitable that the court will have to do so.”
But whether any of these complaints receive a hearing may depend on how many justices fill the bench. As of Tuesday, the appointment of a ninth justice is indeterminately on hold.
“As happened after Justice Scalia died, an eight-justice court will likely look for narrow grounds to dispose of cases, and, if all else fails, split 4-4 when there is no majority,” Weber said. “That goes for the First Amendment cases as well as any others.”