Fighting Discrimination

Five Cases That SCOTUS Could Use To Barrel Through The Wall Of Separation

  Ethan Magistro

Although the Supreme Court’s 2020–2021 term has ended, trepidation about cases in the pipeline for the next term is growing. The court has already agreed to hear a variety of highly charged cases during its 2021-22 session, and other cases it may decide to hear could have detrimental results for church-state separation.

Here are the top cases that Americans United is watching carefully:

Carson v. Makin: This case deals with one of American United’s bread and butter issues: school vouchers. Maine school districts that don’t operate their own secondary schools offer to pay students’ tuition at private schools, so long as the private schools don’t use the money for religious instruction and don’t unlawfully discriminate. Yet a group of Maine parents wants to use funding from this voucher-like program to pay for religious education of their children at religious schools that have discriminatory policies. The court granted review of this case. A bad ruling in this case could mean that states must include religious schools in voucher programs, even when that funding is used for religious or discriminatory purposes. We’re all on the edge of our seats to see how the justices decide this one.

Dobbs v. Jackson Women’s Health Organization: The court has also agreed to hear this case, which has been the focus of intense speculation by every legal reporter in the nation since it could overturn Roe v. Wade. While the case does not explicitly involve religion-based legal claims, religious motivations play a large role in anti-abortion legislation and the anti-abortion movement. A ruling in favor of the deeply restrictive Mississippi anti-abortion law at issue in the case would be another step toward theocratic control of American law.

Dignity Health v. Minton: A Catholic hospital in California canceled Evan Minton’s scheduled hysterectomy once it learned that he is a transgender man. In response to Minton’s suit, Dignity Health raised a freedom-of-religion defense, arguing that it had a right to refuse to provide medical treatment that violates its religious beliefs. The court has not decided whether it will hear the case, but if it does, a ruling in favor of the Catholic hospital would have dangerous implications. With more and more hospitals around the country having a Catholic affiliation – Dignity Health is the fifth largest healthcare system in the nation – a ruling in Dignity’s favor could give a substantial proportion of the country’s hospitals carte blanche to refuse to provide procedures they disapprove for religious reasons. For example, some religiously affiliated hospitals refuse to perform tubal ligations in conjunction with caesarian sections or to terminate a pregnancy even when it’s clear that the fetus has no chance of surviving and the mother’s life is in danger. A bad ruling here could even open the door for religiously affiliated hospitals to simply refuse to treat LGBTQ people based on a purported religion-based “right” to discriminate. This is a prime example of when religious beliefs could be used to acutely harm others.

Shurtleff v. City of Boston: The city of Boston, which allows private groups to request to fly a flag on a city-owned flagpole outside city hall, rejected an application by Harold Shurtleff to fly the Christian flag. Shurtleff sued, making a freedom-of-speech argument, but federal trial and appellate courts ruled that flags on the pole are government speech, not private speech, so the city has the right to decide what flags it flies. The appellate court explained that flying the Christian flag on the city’s flagpole could also violate the separation of church and state, and the court cited a friend-of-the-court brief Americans United filed in the case. Should the Supreme Court grant review and rule in favor of Shurtleff, the decision could be another major blow to church-state separation.

Roman Catholic Diocese of Albany v. Lacewell: New York requires employer-sponsored health insurance plans to cover medically necessary abortions but provides a religious exemption to tax-exempt non-profits that exist to inculcate religious values and primarily employ and serve people of their own religion. The limited scope of the exemption makes sense; a broader exemption would allow religious organizations to impose anti-abortion religious beliefs on people who do not share those beliefs. Yet the Diocese of Albany wants New York to expand the exemption to include all religious organizations, ultimately asking the court to overturn the precedent that makes it harder to use religion to abridge people’s rights. Were the court to agree to hear this case and rule in favor of the diocese, religious organizations that employ an ideologically diverse array of people could force their religious beliefs on their employees, refusing to provide coverage for medically necessary abortions.

There are other cases with church-state significance that Americans United is keeping an eye on, such as a case (FBI v. Fazaga) involving FBI surveillance of individuals simply because they were Muslim. So, the fight for church-state separation will be intense next term, but no matter how the odds are stacked, Americans United is ready to throw some punches.

If you want to hear more about where the Supreme Court is going and the future legal landscape of church-state separation, join us Aug. 3 for a presentation and Q&A session with AU attorneys.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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