What the Supreme Court's latest actions tell us about the future of religious freedom
Posted July 4
The cheering by conservative faith groups over a dominant Supreme Court win in the case of a church-run preschool on June 26 may be short-lived, legal experts say, as the court's decision masks ongoing disagreement among justices when religious liberty collides with other legal protections.
"The court still appears to be pretty fractured on many church-state issues," said Melissa Rogers, a nonresident senior scholar with the Brookings Institution who formerly headed faith-based partnerships under the Obama administration.
That should trouble the conservative, religious Americans celebrating the Supreme Court's decision to review Masterpiece Cakeshop v. Colorado Civil Rights Commission this fall, experts said. The case asks whether the free exercise and free speech clauses of the First Amendment protect small business owners with religious objections to taking part in same-sex marriages.
"It's perfectly possible here to protect the rights of same-sex couples and religious dissenters, but neither (conservative nor liberal justices) seem much interested in doing that," said Douglas Laycock, a leading religious liberty scholar and law professor at the University of Virginia.
The case will likely come down to a single vote, illustrating the risks of relying on the Supreme Court to steer the direction of religious freedom law, said Frederick Gedicks, a law professor at Brigham Young University.
"It's an all-or-nothing game. It's not like the Utah Compromise where each side gets something," he said, referring to state-level legislation that sought to balance the needs of the LGBT community and religious believers.
It's also a game that conservative Americans have come to depend on as public support grows for same-sex marriage and shrinks for religiously based service refusals. The Supreme Court has taken significant action on religion-related issues in recent years as federal and state lawmakers stopped looking for opportunities to compromise.
In closing out its term the last Monday in June, the high court ruled in the preschool case that religious organizations deserve equal treatment in certain public grant programs, agreed to hear the wedding-related services case, upheld parts of the Trump administration's ban on travel from six Muslim-majority countries and said that same-sex couples can put both of their names on their child's birth certificates.
"Its rulings loom large in terms of defining what religious freedom means in this country and how we experience it on day-to-day issues," said Rogers, who previously served as executive director of the White House Office of Faith-based and Neighborhood Partnerships.
However, even high-profile victories for a church or faithful baker can harm religious freedom, said Holly Hollman, general counsel and associate executive director of the Baptist Joint Committee for Religious Liberty. Supreme Court cases sometimes make conscience rights look like a weapon to be used against others, rather than a First Amendment freedom everyone can support.
"I still think most Americans would claim that religious liberty is important, a bedrock principle and a fundamental value," she said. "But today, a lot of the conflicts over religious freedom are confusing to people or they threaten to divide people or harm people."
The justices and religious freedom
Many memorable, religion-related rulings in recent years have been split 5-4 decisions, including one that legalized same-sex marriage and another that said closely held corporations headed by religious owners were protected by the Religious Freedom Restoration Act.
Close decisions in religious freedom cases are common because there's not much room for compromise on issues related to the Establishment Clause, which prevents the government from supporting a religion, or the Free Exercise Clause, which protects the right of individuals and groups to live out their beliefs, Laycock said.
"For the most part, the conservative (justices) are unwilling to enforce the establishment clause. They don't (care) about the government imposing prayer services on religious minorities," he said. "The liberal (justices) are unwilling to enforce the free exercise clause in culture war cases. If there's anything about abortion or contraception or birth control or gay rights on the other side, a free exercise claim loses."
Religious freedom claims will generally only get the support of both sides if no one will be harmed by the religious expression in question, he added. For example, in 2015, justices ruled unanimously in favor of a Muslim prison inmate in Holt v. Hobbs. The man wanted permission to maintain a beard as part of his faith.
"They all seem willing to enforce the free exercise clause in other kinds of cases," said Laycock, who has argued five cases before the Supreme Court, including when he represented the Muslim inmate. "There have been some unanimous decisions in the last few years."
A larger consensus was also possible in Trinity Lutheran Church of Columbia, Inc. v. Comer, which was decided on June 26. That's likely because the majority opinion was written in such a way to limit the ruling's impact on future religious freedom law, said Robert Tuttle, a law and religious studies professor at George Washington University.
"It looks an awful lot like the case is limited to its facts," he said.
Billed as a case that could dramatically alter religious organizations' access to public money, it ended with a 7-2 ruling that found Trinity Lutheran's preschool should have received a state-funded scrap tire grant for which it was highly qualified. Chief Justice John Roberts wrote that the state of Missouri's decision to exclude all churches from the program was a form of discrimination.
"The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand," he said.
Justices Sonia Sotomayor and Ruth Ginsburg dissented in the case, asserting that a ruling for the church unnecessarily complicated church-state separation.
There was even disagreement among the seven justices who sided with the church. Justices Neil Gorsuch and Clarence Thomas only partially supported the majority opinion, taking issue with a footnote that limited the impact of the case to funding programs related to school playgrounds. Justice Stephen Breyer wrote a separate, concurring opinion, explaining that religious organizations should always have access to public benefits like fire protection.
But the overall consensus is still notable, Rogers said.
"Often church-state decisions are decided along party lines. This one was not," she said.
As a result of the Trinity Lutheran ruling, the Supreme Court sent four other cases back to state-level courts for reconsideration, including one in New Mexico involving publicly funded textbooks for low-income and minority students, some of whom attend religiously affiliated schools.
There's little chance of the Trinity Lutheran consensus carrying over to the latest religious freedom case on the Supreme Court's docket, experts said. There are very different legal concerns at stake in the question of whether a baker, Jack Phillips, should have to provide a cake for a same-sex wedding when he objects to the message that cake would send.
The case originated in 2012, when David Mullins and Charlie Craig asked Phillips to bake a cake for their wedding reception and the baker refused, citing religious concerns. The gay couple sued him under Colorado civil rights law and prevailed before an administrative court judge, the Colorado Civil Rights Commission and the Colorado Court of Appeals. Phillips appealed to the Supreme Court in July 2016.
Unlike some earlier cases involving bakers and florists objecting to serve a same-sex marriage on religious grounds, Masterpiece Cakeshop includes a free speech claim. Phillips says he is a cake artist and shouldn't be forced to share a message he doesn't agree with.
That piece of his argument is important because he likely wouldn't have gotten very far with the free exercise clause alone, Laycock said. Since the Supreme Court's 1990 ruling in Employment Division v. Smith, it's been hard for people of faith to use the free exercise clause to argue for an exemption from a generally applicable law like Colorado's public accommodations statute.
At first glance, Gorsuch might appear to be the justice to watch in the Colorado baker case. He was appointed by President Donald Trump as a show of support to religious conservatives and distinguished himself in Trinity Lutheran as someone who believes in robust free exercise protections.
"The First Amendment's Free Exercise Clause … guarantees the free exercise of religion, not just the right to inward belief," Gorsuch wrote in his response to the majority opinion.
"I think we learned in Trinity Lutheran that Justice Gorsuch sounds a lot like (Antonin) Scalia," the justice he was appointed to replace, Rogers said.
Gorsuch also wrote a dissent in the Supreme Court's recent ruling enabling both members of a same-sex couple to have their names on a child's birth certificate. Six of the nine justices agreed to the ruling without hearing oral arguments, and Gorsuch argued that the case deserved fuller treatment given that laws related to same-sex couples are still unsettled.
In this case, as in Trinity Lutheran, Gorsuch came across as a strong conservative. Even so, he doesn't change the balance of liberal and conservative justices on the Supreme Court.
The real wild card in the Masterpiece Cakeshop case will be Justice Anthony Kennedy, experts said.
Kennedy authored the majority opinion in Lawrence v. Texas and Obergefell v. Hodges, cases that found criminalizing gay or lesbian sexual relations was unconstitutional and then legalized same-sex marriage, respectively.
"Clearly he sees his authorship of those opinions as part of his legacy. Would he really rule in favor of for-profit business owners who want to withhold services from LGBT persons?" Gedicks said.
But Kennedy also sided with for-profit corporations in Burwell v. Hobby Lobby, granting these companies an exemption under the Religious Freedom Restoration Act from the Affordable Care Act's contraception mandate.
"His jurisprudence in these areas is in tension," Gedicks said. "I think this one is very hard to call."
Religious freedom's future
The predicted close decision in the Masterpiece Cakeshop case mirrors the polarization affecting religious freedom debates in Congress, state capitol buildings and elsewhere.
"With respect to both religious liberty and anti-discrimination laws, I think Congress is frozen in place," Gedicks said.
That's one of the reasons the Supreme Court has become such a valuable tool in civil rights debates, he added.
"The Supreme Court has, in many respects, displaced legislative compromise," he said.
Overall, Americans may agree that members of religious minorities deserve protection, but they have a harder time deciding when conscience rights should win out over other legal guarantees, Hollman said.
"There is common ground on religious liberty as far as churches and ministers" being able to refuse to participate in same-sex marriage without pressure from the state, she said. "But it's more difficult when you're claiming religious rights in a commercial context where the rights of others could be harmed."
Americans are split nearly down the middle on whether small business owners providing wedding-related services should be required to work with same-sex couples in spite of religious objections, according to Pew Research Center. Forty-nine percent of U.S. adults say businesses should serve all customers, while 48 percent say service refusals should be allowed.
These figures help explain the mixed results religious groups can expect even when they win at the Supreme Court, experts said. They may gain the right to refuse to provide birth control to their employees, but be labeled as bigots by half the population.
Perhaps even worse, their efforts could harm religious freedom's reputation, Hollman said.
"If I'm new to the religious liberty conversation and I hear about it in this highly politicized, raw context of the new rights of the LGBT community, maybe I won't embrace religious liberty in the same way as someone else," she said.
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