In September 2015, Pope Francis called religious liberty “one of America’s most precious possessions” and urged American Catholics “to be vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it.” For while “American Catholics are committed to building a society which is truly tolerant and inclusive,” the Pope noted “they are likewise concerned that efforts to build a just and wisely ordered society respect their deepest concerns and their right to religious liberty.”
Five years later, the vigilance Pope Francis spoke of is needed now more than ever. Over the first half of 2020, the Supreme Court decided four major religious liberty cases. The first case will open Christian employers up to a whole new slate of discrimination lawsuits, but overall the Court has expanded religious liberty protections. On the whole, I remain optimistic about the future of religious liberty. But, as Pope Francis cautioned, we as Catholics need to be vigilant about protecting this most precious freedom.
Supreme Court Overview
The case that has caused the most consternation for the Church is the June 15 decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation or transgender status.
The Court’s ruling sent shockwaves throughout the Church. Archbishop Jose H. Gomez of Los Angeles, president of the USCCB, lamented “that the U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law,” calling it “an injustice that will have implication in many areas of life.”
Notre Dame law professor Rick Garnett agreed, predicting that Bostock may affect not only Catholic employers’ hiring decisions, but also “universities’ residential-hall practices, sports-eligibility rules, government contracts and research grants.” ⊲
But while Bostock will certainly lead to more religious liberty conflicts, the Supreme Court’s other three religious liberty decisions demonstrate the Court’s strong commitment to what the USCCB has called our “First Freedom.”
In Espinoza v. Montana Department of Revenue, the Court finally confronted the ugly anti-Catholic and anti-immigrant history of “Blaine amendments,” provisions found in 37 state constitutions—including Colorado—that block state funds from going to religious schools. The Court held that Blaine amendments violate 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.”
Little Sisters of the Poor v. Pennsylvania marks the Supreme Court’s latest foray in the nearly decade-long battle over the federal contraception mandate. 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. which asked whether teachers at two California Catholic schools qualified for the First Amendment’s “ministerial exception,” a doctrine that keeps the government from interfering with the Church’s most important personnel decisions. The Court said yes, affirming that the ministerial exception should be interpreted broadly to protect the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
Brokering a Fragile Peace
What do these 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 The Becket Fund for Religious Liberty, 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 teachings about sexual morality and the nature of the human person. But an ever-growing portion of our society not only rejects these teachings, but sees them as bigotry that threatens the “pursuit of happiness” that is every American’s birthright.
Catholic leaders need to take advantage of good religious liberty decisions by taking concrete steps before conflicts arise. All Catholics should pray for our leaders, and that our nation will continue to honor our First Freedom.
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, it has refused to follow the left in condemning the Church’s teachings as hateful bigotry.
This is the same approach the Supreme Court took in Obergefell v. Hodges, the 2015 case that declared a constitutional right to same-sex marriage. That same decision also rejected efforts to conflate those, like Catholics, 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.”
This fragile peace will be tested again this fall, when the Supreme Court takes up Fulton v. City of Philadelphia. That case asks whether the City can force Catholic Social Services to either place children with same-sex couples, in violation of its Catholic beliefs, or else abandon its foster care ministry altogether. The Supreme Court’s decision will be yet another test as to whether the First Amendment makes room for the Catholic Church to serve the public while remaining true to its unpopular teachings about the human person.
Practical Steps Forward
What do these high-stakes battles over religious liberty mean for Catholics today? The big picture concern, as Goodrich notes in Free to Believe, is that our “culture is changing. Religious freedom is not as secure as it once was.”
What does this mean for the Church and the Catholic faithful? For the Church and other Catholic organizations, the fragile state of religious liberty means they need to take proactive steps to take advantage of available religious liberty protections. Goodrich urges religious leaders to take practical steps to “strengthen their witness and reduce their likelihood of conflict and loss.” “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.” 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 as Goodrich shows, such planning is an increasingly important part of stewardship and prudent leadership.
But religious liberty is not just a concern for the institutional Church and those who agree with the Church’s teachings on culture war issues. That is because religious liberty, first and foremost is about liberty, freedom from government coercion. The USCCB calls religious liberty our “First Freedom” not just because it is listed first in the Bill of Rights, but because it is foundational to our other freedoms. To put it another way, if government can force Catholic nuns to buy contraceptives, what can’t it do?
The increasing legal and cultural pressures on religious institutions make the Supreme Court’s religious liberty decisions more important than ever. Catholic leaders need to take advantage of good religious liberty decisions by taking concrete steps before conflicts arise. All Catholics should pray for our leaders, and that our nation will continue to honor our First Freedom.
Eric Kniffin is an attorney in Lewis Roca Rotherberger Christie’s Religious Institutions Practice Group.
Image caption: Mother Loraine Marie Maguire, of the Little Sisters of the Poor, speaks to the media after aruments at the US Supreme Court, March 23, 2016 in Washington, DC. Today the high court heard arguments in Little Sisters v. Burwell, which will examine whether the governments new health care regulation will require the Little Sisters to change their healthcare plan, to other services that violate Catholic teaching. (Photo by Mark Wilson/Getty Images)