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Beyond the Headlines

What recent Supreme Court cases say about religious liberty’s future

Eric N Kniffin on October 14, 2020

American Christian leaders have braved unprecedented challenges this year. When the pandemic hit, ministries quickly learned how to offer worship services, build community, and even teach school remotely.

When the economy tanked, religious organizations navigated the federal Paycheck Protection Program so they could continue to care for their employees and serve their communities.

And now that the U.S. Supreme Court has decided four major religious liberty cases, the Christian community is again discerning a path forward.

I do not dare venture to guess how the pandemic will play out, but as an attorney who has been representing religious organizations for most of my career, I would like to share some insights into these Supreme Court cases to help Christian leaders get past the headlines and the social media hot takes.

I remain optimistic about the future of religious liberty. But just as we are all taking practical steps to protect our communities from the coronavirus, I believe we should start taking steps to protect our ministries’ religious freedoms.

Supreme Court Overview

The case that has caused the most consternation for Christian leaders is the June 15 decision in Bostock v. Clayton County. The central issue was whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation or transgender status.

There were at least three reasons to expect the Supreme Court to say “no.” First, the only categories listed in the law are race, color, religion, national origin, and sex — and all attempts to amend the law to include sexual orientation and gender identity had failed.

Second, all sides agreed that Congress would not have passed a bill that clearly prohibited such discrimination in 1964.

Third, over the law’s first 40 years, federal appellate courts had unanimously held Title VII did not cover sexual orientation or gender identity.

But the Court, in a 6-3 decision, held that these considerations could not sway it from deciding the case based on “the straight forward application” of Title VII’s text. Looking at that text, the Court determined Title VII’s prohibition on sex discrimination necessarily covered the plaintiffs’ claims as well, “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court’s ruling sent shockwaves throughout the Christian world, especially among groups like the Assemblies of God that have held fast to biblical teachings on human sexuality.

Andrew Walker lamented in Christianity Today that “Bostock is as bad as you think,” and that it represents “a significant inflection point in the never-ceasing culture wars.”

Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, warned the decision will have “seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles.”

While these fears are real, it is also important to note Bostock’s conclusion, where the Court affirmed it shares the concerns of religious groups who worry its broad reading of Title VII “may require some employers to violate their religious convictions.”

In response, the Court referenced “several doctrines protecting religious liberty,” including two other parts of Title VII: one that allows religious organizations to use religion as a factor in their employment decisions, and another that allows employers to identify religion as a bona fide occupational qualification for specific positions.

These references may not sound significant. After all, these provisions have been in Title VII for decades, and courts have interpreted them narrowly. But the strict textualism the Court employed in Bostock may also breathe life into these long-neglected religious liberty protections.

Decades of case law said the plaintiffs in Bostock should lose, but the Supreme Court found these precedents contradicted the “ordinary meaning” of the law’s text: “when the meaning of the statute’s terms is plain, our job is at an end.”

Likewise, Bostock should help religious organizations lay claim to Title VII’s yet-unrealized promise that religious groups may use religion when making employment decisions, and that in this context “religion” includes “all aspects of religious observance and practice as well as belief.”

If one has to squint to find a silver lining in Bostock, the good news from the Court’s other three religious liberty decisions is more straightforward.

The Court’s next religious liberty decision, Espinoza v. Montana Department of Revenue, overturned Montana’s “Blaine amendment,” a provision rooted in anti-Catholic and anti-immigrant bigotry that forbids state funds from going to religious schools.

Building on its 2017 decision in Trinity Lutheran v. Comer, the Court held that the Blaine amendment violated the First Amendment’s Free Exercise Clause, which “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”

The Supreme Court’s last two religious liberty decisions came on July 8. Little Sisters of the Poor v. Pennsylvania marks the Supreme Court’s latest foray in the nearly decade-long battle over whether religious employers must comply with the federal contraceptive and abortifacient mandate, despite their religious objections.

The Court held that the Trump Administration acted lawfully when it created a broader religious employer exemption from the mandate, and affirmed that the Religious Freedom Restoration Act (RFRA) not only permits but requires federal agencies to consider whether regulations like the contraception mandate burden religious exercise.

The last religious liberty case of the term was Our Lady of Guadalupe School v. Morrissey-Berru. This was a follow-up to the 2012 Hosanna-Tabor decision, the first Supreme Court case to recognize a “ministerial exception” rooted in the First Amendment’s religion clauses.

Whether navigating a global pandemic or the growing challenges to religious liberty, good leaders will soberly assess the situation and take practical steps to keep their communities safe.

This time, the Court reviewed two Ninth Circuit decisions that had interpreted Hosanna-Tabor narrowly, ruling that teachers at two California Catholic schools fell outside the ministerial exception — and were therefore free to sue their former employers — because they failed to satisfy the four factors identified in Hosanna-Tabor.

The Supreme Court held that the Ninth Circuit had erred by treating the ministerial exception as a narrow doctrine, available only when employees meet a “rigid formula” based on the factors at issue in Hosanna-Tabor.

To the contrary, the Court affirmed that the ministerial exception is an important doctrine that protects the constitutional right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

To vindicate this principle of church autonomy, the ministerial exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Courts should look to “a variety of factors” in determining whether a given employee falls within the exception. Under this broad approach, both Catholic school teachers before the Court qualified as ministerial employees.

Brokering a Fragile Peace

What do these Supreme Court decisions say about where we are as a society and the future of religious liberty? All four cases show the Supreme Court struggling with the reality that we live in a deeply divided, pluralistic society.

Luke Goodrich, vice president at Becket, describes this standoff in Chapter 4 of his recent book, Free to Believe: The Battle over Religious Liberty in America. Goodrich notes that Christians believe in absolute truth, and among these truths are certain biblical teachings about sexual morality and the nature of the human person.

But an ever-growing portion of our society not only rejects these teachings, they see them as bigotry that threatens the “pursuit of happiness” that is every American’s birthright.

How is the Supreme Court trying to manage this fundamental impasse? It seems the Court is willing to adopt the dominant progressive worldview, but with two important exceptions.

First, the Court has continued to stand by our nation’s fundamental commitment to religious liberty.

Second, and relatedly, it has refused to follow the left in condemning traditional Christian teachings as hateful bigotry.

Take, for example, the Supreme Court’s 2015 decision in Obergefell v. Hodges. The Court declared a constitutional right to same-sex marriage, but also pushed back against efforts to conflate those who believe in traditional marriage with racists: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

The Court remains committed to this principle today. In Bostock, the Court listed statutory and constitutional protections that will help religious employers respond to discrimination claims. Espinoza affirmed that discrimination on the basis of religion violates the First Amendment.

Little Sisters of the Poor preserved an exemption that lets religious employers exclude contraceptives and abortifacients from their health plans. And Our Lady of Guadalupe affirmed that the First Amendment prevents government from interfering with “matters of church government as well as those of faith and doctrine.”

Practical Steps Forward

While key battles over religious liberty continue to play out at the Supreme Court, and while progressive and religious groups wrestle over the scope of these opinions in the lower courts, ministry leaders should not resign themselves to watching from the sidelines.

In the midst of the COVID-19 pandemic, good leaders are translating expert advice into practical changes to protect their congregations against future outbreaks. The same is true with the looming threats to religious liberty.

Goodrich wrote Free to Believe because he saw that our “culture is changing. Religious freedom is not as secure as it once was. And the church is unprepared.” But the good news is that practical changes can make a real difference.

In his book’s final chapter, “Free to Believe,” Goodrich urges religious organizations to take proactive steps to take advantage of religious liberty victories.

“Far too often,” Goodrich warns, “religious organizations wait until a conflict is already upon them before seeking legal advice. By then, it’s often too late.”

The consequences of inaction can be harsh. Goodrich tells the story of the Herx case, where an Indiana church lost an employment discrimination suit despite strong religious freedom claims in the abstract.

According to Goodrich, the church lost “because it made several mistakes that increased its risk of conflict and liability. It didn’t clearly communicate its religious values throughout the organization. ... It wasn’t careful enough in hiring and training its employees. And it lacked a consistent process for enforcing its standards of conduct.”

Because the church failed to prepare, a teacher was hurt, a lawsuit exposed the church’s inconsistencies, and a frustrated jury awarded the plaintiff $2 million in damages.

Goodrich offers Herx as a cautionary tale. He hopes such cases will prompt religious leaders to engage an experienced religious liberties attorney to help them take practical steps to “strengthen their witness and reduce their likelihood of conflict and loss.”

Goodrich’s advice echoes many of the strategies I outlined in a special report for the Heritage Foundation, Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges without Changing Their Witness.

Taking these practical steps is a time-intensive and resource-intensive process, but such planning is an important part of stewardship and prudent leadership in our cultural and legal contexts.

Whether navigating a global pandemic or the growing challenges to religious liberty, good leaders will soberly assess the situation and take practical steps to keep their communities safe.

As Paul told Timothy, “the Spirit God gave us does not make us timid, but gives us power, love and self-discipline” (2 Timothy 1:7). The increasing legal and cultural pressures on religious institutions are real, and they make the Supreme Court’s religious liberty decisions more important than ever.

But to take full advantage of Supreme Court victories, ministry leaders need to take concrete steps before conflicts arise.

The information contained in this article is provided for educational purposes only and is not legal advice. Readers should not act upon any information in this article without seeking professional legal advice. This information is not intended to and does not create an attorney-client relationship. If you have questions about how this information applies to your ministry, please reach out to Eric separately.

This article originally appeared in the September/October 2020 edition of Influence magazine.

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