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No doubt about it: We have a pro-religious freedom Supreme Court

Washington Examiner logo Washington Examiner 7/27/2021 Carrie Severino
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Last summer, I wrote, “The Supreme Court has never been more protective of religious freedom in its history.” This term, the court’s “pro-religion” streak has continued — and then some.

First, there were the COVID-19 cases. Initially, the court was reluctant to grant emergency relief, declining to intervene in challenges to California’s and Nevada’s restrictions last summer. But on Thanksgiving eve last year, the court changed its tune, thanks to the confirmation of Justice Amy Coney Barrett.

Barrett was part of the court’s new majority that prohibited New York Gov. Andrew Cuomo from enforcing an executive order imposing very severe restrictions on attendance at religious services. In an unsigned opinion, the court explained that while stemming the spread of COVID was “unquestionably a compelling interest,” Cuomo’s order was not narrowly tailored: “Even in a pandemic, the Constitution cannot be put away and forgotten.”

Despite the clarity of that opinion, the court had to step in again in a case brought by an evangelical church in Pasadena challenging California’s restrictions on indoor worship. The court struck down a 0% capacity public health order on indoor worship services and stopped California’s restrictive rules as they applied to indoor home Bible study and other forms of worship. The court made abundantly clear that worship-targeting is unconstitutional.

Moreover, in every case that was fully briefed and argued this term, the court was pro-religion.

In Tanzin v. Tanvir, the justices unanimously ruled in favor of Muslim men who were placed on the FBI’s no-fly list. The Religious Freedom Restoration Act, explained Justice Clarence Thomas, allows complainants to seek monetary damages from individual government employees who violate their religious rights. 

Uzuegbunam v. Preczewski involved a clash between a Christian college student and a campus speech policy. The court held 8-1 that lawsuits seeking only nominal damages can continue even after the government has abandoned the policy or practice that prompted them. Thomas, again writing for the court, traced the historical line of cases in the common law and concluded that a request for nominal damages is sufficient for a plaintiff to bring a case. He rejected “the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff.”

In Americans for Prosperity Foundation v. Bonta, the court held that California cannot force nonprofit groups to disclose the names of their donors, reaffirming the right to associate freely. Because of the close nexus between the freedom of association and free exercise, this is an especially important victory for many religious people who hold beliefs conflicting with an increasingly secular society.

In Fulton v. City of Philadelphia, the court unanimously held that Philadelphia’s refusal to renew its contract with the Catholic Archdiocese’s foster care placement agency unless it agreed to certify same-sex couples as foster parents violates the free exercise clause.  

The Fulton majority did not address whether to overrule Employment Division v. Smith, the controversial 1990 decision holding that the First Amendment is not violated by “neutral and generally applicable” laws with an incidental burden on religion. Significantly, however, a majority of the court expressed disagreement with Smith in concurring opinions.

Fulton extended the court’s unbroken line of victories for religious freedom and expression spanning the last decade. And Fulton’s influence on the court’s religious freedom jurisprudence is already evident. This month, the court vacated and remanded a case brought by the Swartzentruber Amish, who argued that a Minnesota county acted unlawfully when it demanded that the religious community install modern septic tanks for disposal of water used for things such as dishwashing and laundry or be subject to jail, fines, and even losing their farms.

In a concurring opinion, Justice Neil Gorsuch pointed to “a few issues” that “lower courts and administrative authorities” might consider in light of Fulton. When a court considers whether a government has a “compelling governmental interest” in imposing a contested regulation, Gorsuch explained, it must include reference to “the specific application of [a regulation] to this community.”

The point here is significant: The government must have a compelling reason to deny the specific community or person their rights. And crucially, Gorsuch wrote that courts must also give weight to exemptions that other groups enjoy both in and outside the jurisdiction. In other words, before denying an accommodation, the government must do some homework. Quoting Fulton, Gorsuch reminded lower courts, “If ‘the government can achieve its interests in a manner that does not burden religion, it must do so.’”

Consider how far the court has come from earlier decades, when the justices often treated religion with suspicion or outright hostility. The court’s muddled establishment clause test in the 1971 case Lemon v. Kurtzman often led to inconsistent results on religious symbols and expression, and Smith shrank free exercise clause protections so much that Congress had to pass the Religious Freedom Restoration Act to offset it.

Thankfully, those days appear to be long gone, and we now have a court more protective of religious liberty than any in our lifetimes.

Carrie Campbell Severino is president of the Judicial Crisis Network.

Tags: Opinion, Op-Eds, Supreme Court, Religious Freedom, Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, California

Original Author: Carrie Severino

Original Location: No doubt about it: We have a pro-religious freedom Supreme Court

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