Some religious liberty wins in 2020
Religious Liberty | Despite challenges, a shift in the Supreme Court led to a stronger defense for houses of worship
by Steve West
Posted 12/29/20, 02:12 pm
Historians looking back at 2020 may key in on a culture upended by pandemic, racial protests, and a particularly fraught election. But a bevy of U.S. Supreme Court decisions strengthening religious liberty—for individuals, churches, and other institutions—could prove the more enduring seismic shift.
School choice advocates hailed the Supreme Court’s June decision in Espinoza v. Montana Department of Revenue. The justices voted 5-4 to strike down the state’s Blaine Amendment, which barred public aid from going to educational institutions “controlled in whole or in part by any church, sect, or denomination.” The court held the rule—modeled after U.S. House Speaker James Blaine’s failed 1875 federal amendment—unfairly excluded religious schools and potential students.
Montana’s provision excluded religious schools and parents wanting to send their children to them from receiving public benefits “solely because of the religious character of the schools,” Chief Justice John Roberts wrote for the majority. A state “need not subsidize private education,” Roberts said, but once it decides to do so, it cannot disqualify private schools just because they are religious.
The effect of the “fair treatment” principle was near immediate. A little over a month later, citing Espinoza, a federal appeals court ordered the state of Vermont to allow students in religious schools to participate in a program letting high school students earn college credits at the state’s expense.
The Supreme Court also reaffirmed protections for religious institutions in cases involving LGBTQ issues and abortion.
Religious conservatives were alarmed when the Supreme Court upheld a transgender employee’s employment discrimination claim against a Christian funeral home employer. In June’s Bostock v. Clayton County, a court majority ruled that Title VII of the Civil Rights Act’s prohibition against sex discrimination included same-sex and gender identity discrimination. But a caveat in the ruling noted a range of legal protections remained for religious institutions facing discrimination claims.
In July’s Little Sisters of the Poor v. Commonwealth of Pennsylvania, the court affirmed a group of nuns had the right not to cover contraception in their group health insurance plan. In a long-anticipated decision, the court ruled the government had the authority to exempt employers with religious objections from contraceptive requirements. While the decision did not address the nuns’ constitutional right to free exercise, it exhibited the justices’ high regard for religious belief.
In August, the Supreme Court ruled in Our Lady of Guadalupe School v. Morrissey-Berru that courts should not second-guess religious schools’ hiring decisions for teachers who perform religious duties. The justices said function, not title, determined whether courts should apply the “ministerial exception.”
“What matters, at bottom, is what an employee does,” wrote Justice Samuel Alito for a 7-2 majority, adding that the schools believed the teachers in question played “a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important.”
As with Espinoza, the ruling in Guadalupe percolated through lower courts. Southern Baptist leaders have cited it as basis for dismissing a lawsuit from a former Baptist minister against a church. Louisiana pastor Tony Spell unsuccessfully argued it allowed him to flout COVID-19 restrictions on worship at his Baton Rouge church.
The coronavirus pandemic opened up a new front in the battle surrounding religious liberty. While churches initially cooperated with governors’ health-related lockdown orders, they soon began to challenge the shuttering of places of worship and relegation of worship to the list of nonessential businesses.
Popular southern California pastor John MacArthur and the leadership of Grace Community Church—after complying with indoor worship bans at first—reinstated indoor worship in defiance of local health officials. So did many others. MacArthur saw some wins and losses as the battle dragged on.
Lawsuits against restrictions on drive-in, outdoor, and indoor worship met limited success early on. In June, a 5-4 majority of the Supreme Court rejected another California church’s emergency petition to overturn the state’s 10-person limit on indoor services, with Roberts joining court liberals to defer to state officials. “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” he wrote in a concurring opinion that went on to have an outsize effect on virtually every lower court ruling to follow.
But that all changed in late November, following Justice Amy Coney Barrett’s confirmation to the Supreme Court. In another 5-4 opinion, the justices barred New York Gov. Andrew Cuomo from enforcing his 10- and 25-person occupancy limits on houses of worship in zones with high COVID-19 infections. “[E]ven in a pandemic, the Constitution cannot be put away and forgotten,” the majority wrote. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Within a week, the justices tossed out a lower court decision upholding worship restrictions in California and told the court to reconsider. It did the same with decisions in Colorado and New Jersey shortly thereafter. Then the usually liberal 9th U.S. Circuit Court of Appeals overturned Nevada Gov. Steve Sisolak’s 50-person cap on worship attendance, citing a “seismic shift” in First Amendment law.
So-called “cancel culture,” continued to threaten free speech in 2020, though little of the battle took place in courts.
Liberal and conservative lawmakers joined together to summon Big Tech executives to Congress for a tongue-lashing on multiple occasions over censorship or lack of moderation on their platforms. President Donald Trump vowed to repeal Section 230 of the Communications Decency Act, which immunizes the internet companies from liability for user-posted content, though so far Congress has taken no action.
But lawmakers and others curbed restrictive speech codes on many college campuses. Ohio legislators passed a bill this month to outlaw campus free speech zones. And an increasing number of colleges are revising restrictive speech policies in the face of criticism.
The coming year promises no let up in either attacks on religious liberty or free speech. The Supreme Court is considering the breadth of nondiscrimination ordinances that impact religious institutions in Fulton v. City of Philadelphia, where the city declined to renew its contract for foster care placement with Catholic Social Services because the historic agency worked only with husband-wife couples.
And in Arlene’s Flowers v. Washington, the court may revisit Washington florist Barronnelle Stutzman’s argument that the free exercise guarantee protected her from having to design a floral arrangement for a same-sex wedding.
More troubling for the future year is a question some commentators have asked: In a more secular and polarized America, do most Americans still appreciate the importance of our fundamental liberties?
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.