April 2020 Church & State Magazine | Featured

The U.S. Supreme Court has agreed to hear an unusually high number of cases involving the separation of religion and government this term, and the high court already has accepted its first religious freedom case for the next term that begins in October 2020.

It’s fairly commonplace for the justices to grant one religious freedom case in a term, and not unusual for them to hear two such cases. Last year, for example, the justices heard the Bladensburg Cross case (and allowed the towering cross to remain standing on public land in Maryland). In 2018, they decided cases involving President Donald Trump’s Muslim Ban and Masterpiece Cakeshop, the Colorado bakery that cited religious beliefs in refusing to serve an LGBTQ couple. (Both cases also were resolved in ways that further undermined church-state separation and advanced religious discrimination.)

By the time the current Supreme Court term ends later this year, the justices will have heard four church-state separation cases plus two others involving social issues that are influenced by religion. Those cases include:

Espinoza v. Montana Department of Revenue: On Jan. 22, the justices heard arguments in this case involving whether Montana must ignore the religious freedom protections in its state constitution and fund private religious schools with taxpayer-funded school vouchers, even at private schools that discriminate against students and families. The outcome of the case could undermine the constitutions of three-quarters of U.S. states that protect tax­­payers from being forced to fund religious education.

Tanzin v. Tanvir: This case involves three Muslim men who cited their religious beliefs when they refused to provide information about other Muslims to the FBI; the men said the FBI retaliated against them by placing them on the no-fly list. They argue this retaliation violates the Religious Freedom Restoration Act (RFRA) by placing unwarranted burdens on their religious practices. The court primarily was asked to decide whether RFRA allows the men to seek damages against individual government officials.

St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru: The court is scheduled to hear arguments in this pair of cases on April 1. (At press time, there was a possibility argument might be delayed due to the coronavirus outbreak.) For the second time in less than a decade, the justices will be asked to weigh in on the scope of the “ministerial exception,” which was designed to protect houses of worship from being forced to employ faith leaders who didn’t fit their theology. These cases involve two private religious schools that cited the ministerial exception when they fired two teachers whose duties were primarily secular; the women alleged they were fired due to age and disability discrimination.

Trump v. Pennsylvania/Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania: On April 29, the last day arguments will be heard this term, the justices are scheduled to deliberate this case involving Trump’s rules that would allow employers and universities to use religion to deny employees and students birth control coverage in their health insurance.

Americans United also is following two other cases in which religious freedom arguments were not explicitly made before the court, but where religion nonetheless plays a role. The first was actually a trio of cases involving whether Title VII of the 1964 Civil Rights Act protects LGBTQ people from employment discrimination. Arguments in those cases (R.G. & G.R. Harris Funeral Homes Inc. v. E.E.O.C., Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Ga.) were heard on Oct. 8 at the beginning of the term; a decision was expected any time as this issue of Church & State went to print.

Americans United is interested in the outcome because much anti-LGBTQ bias is rooted in religion; in the Harris Funeral Home case, the business owner referenced his religious beliefs when he fired transgender employee Aimee Stephens.

The other case Americans United is tracking is June Medical Services v. Russo. The case, which was argued on March 4, involves a Louisiana law that restricts abortion access – and was influenced by lawmakers’ personal religious views.

The Supreme Court already has granted its first religious freedom case of the October 2020 term – Fulton v. City of Philadelphia. A faith-based foster care agency is asking the Supreme Court to force the city to fund it with taxpayer dollars, even though it violates Philadelphia’s anti-discrimination laws by rejecting qualified LGBTQ parents.