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How Will Religious Freedom Fare This Year?

How Will Religious Freedom Fare This Year?

United States Supreme Court in Washington, D.C. (photo: Gary Blakeley / Shutterstock)

COMMENTARY: Advocates for religious liberty, without an ally in the White House, will turn once again to the Supreme Court for relief.

By the end of its current term, the Supreme Court will have made historic decisions about the scope of religious freedom in America. It will have to settle disputes relating to state school choice, prayers said inside the execution chamber, and abortion in Mississippi.

Let’s take a look at what more we may see in the following key areas:


The Transgender Mandate

A three-judge panel of the 8th Circuit Court of Appeals in St. Louis heard oral arguments on Dec. 15 in a case brought by religious health-care providers and institutions who object to the Biden administration’s directive that they perform or provide insurance coverage for gender-transition procedures.

A decision from the 8th Circuit is imminent and will certainly be appealed to the Supreme Court by the losing party. This will be a hard-fought battle.

Some background is helpful: In 2016, the Obama administration issued a rule imposing mandates, with threats of severe financial penalties, for doctors to provide gender-transition treatment to patients, including minors, even against a doctor’s belief the treatment would be harmful. Although the Trump administration reversed course, President Biden restored the Obama-era “transhealth” protections, insisting that “discrimination based on sex” includes discrimination based on sexual orientation and gender identity.

The Catholic Benefits Association, Catholic Charities North Dakota, the Diocese of Fargo, and the Catholic Medical Association filed one lawsuit in federal court. The other lawsuit includes as plaintiffs the Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center, SMP Health System, and the University of Mary. Please note: The doctors and hospitals that have brought these cases serve all patients regardless of their sex or gender identity and provide excellent care to transgender patients. But, quite rightly, they refuse to perform gender-transition procedures that would violate their beliefs and could harm patients, especially children.

In January 2021, a district court for the North Dakota Eastern Division struck down the transgender mandate in the two consolidated cases. The court blocked the Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing their expanded interpretations of a section of the Affordable Care Act, ruling that requiring the Catholic entities to provide drugs and conduct surgeries for sex reassignment, or to cover such treatments, “violates their sincerely held religious beliefs.” It also barred the EEOC from similarly interpreting or enforcing Title VII of the Civil Rights Act of 1964 to require the Catholic plaintiffs as employers to provide insurance coverage for sex reassignments.

The Biden administration appealed the district court ruling. During the December oral argument, the administration’s lawyer argued that the Catholic entities lack legal standing to be heard in court because there is no “credible threat of enforcement” against them.

Luke Goodrich, senior counsel at Becket law, responded that the HHS “has clearly stated its position on the 2016 rule, saying that categorical refusals to perform or insure gender transitions, which is what our clients do, [are] unlawful on [their] face.” He added that officials at HHS have “staunchly refused to grant a clear religious exemption.”


First Amendment and Smith

Last summer, the Supreme Court was unanimous in ruling that the city of Philadelphia violated the First Amendment when it froze its contract with the Archdiocese of Philadelphia’s foster-care placement agency because the agency refused to certify same-sex married couples as foster parents. Given that the city had allowed for a system of individualized exemptions from its anti-discrimination policy, it could not refuse to provide one for the Catholic agency.

To reach this conclusion, the court did not address an important matter: whether to reconsider its 1990 decision in Employment Division v. Smith. The 1990 Smith decision said that the First Amendment was not violated by “neutral and generally applicable” laws with an incidental burden on religion. In the case in question, Native Americans wanted to be able to take peyote, an illegal substance, because it was part of their religious practice. The late Justice Antonin Scalia, writing the majority opinion, said the First Amendment offered no protection. More than 30 years later, the Court’s originalists want to scrap Smith as inconsistent with the Constitution.

This year they have a chance to do so.

A petition for review in 303 Creative LLC v. Elenis is currently before the Supreme Court. The case involves the reach of Colorado’s Anti-Discrimination Act (CADA) — the same anti-discrimination law that has been used against Jack Phillips, owner of Masterpiece Cakeshop. This time the Christian plaintiff is Lorie Smith, who runs the 303 Creative wedding website-design company.

Smith was worried that CADA would force her to develop websites for same-sex weddings. In 2016 she challenged the law as a violation of the First Amendment guarantees to free speech and religious exercise. In a 2-1 decision, a panel of the 10th Circuit Court of Appeals shockingly ruled that Smith and 303 Creative must create websites for same-sex weddings. Chief Judge Timothy Tymkovich dissented from his colleagues.

“The Constitution protects Ms. Smith from the government telling her what to say or do,” Tymkovich wrote. “But the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. … No case has ever gone so far.”

Smith’s lawyers at Alliance Defending Freedom, the same firm that represents Phillips, have asked the Supreme Court to decide whether a public-accommodation law like CADA that compels an artist like Smith to speak, contrary to her sincerely held religious beliefs, violates the First Amendment. Also, ADF is asking whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith. It’s a loaded question, and we may find that the justices’ answer consigns Smith to the history books.


The Ministerial Exception

In 2012 and again in 2020, the Supreme Court made clear that certain employment decisions made by religious organizations are free from government scrutiny. Known as the “ministerial exception,” this doctrine shields religious institutions from employment-related lawsuits brought by “ministerial” employees.

Such employees, broadly defined by the actual functions of their job and not merely its title, play a crucial role in passing on the faith. The Supreme Court ruled that religion teachers in the two cases couldn’t bring lawsuits against the schools that refused to keep them on because the teachers were performing “ministerial” roles. As a result, courts were barred entirely from hearing the lawsuits.

But what exactly is a “ministerial” role, and how far does the exemption go?

The 7th Circuit Court of Appeals, for example, recently ruled that the First Amendment does not support the claim of a “minister” suing his employer based on claims of a hostile work environment. In Demkovich v. St. Andrew the Apostle Parish, a parish music director was let go when he entered into a same-sex civil marriage in violation of his employment agreement and Church teaching. Demkovich, who conceded that he was a ministerial employee, first filed suit based on wrongful termination.

The court dismissed the suit based on the ministerial exception. Demkovitch then repackaged his claims as based on “hostile work environment” rather than wrongful termination or some other “tangible” employment action. The circuit court sitting en banc (en banc is a legal term meaning that an entire appellate court sits to review a case, as opposed to the common appellate practice of sitting in panels of only three judges) rejected the suit, clarifying that the ministerial exception applies to hostile-work-environment claims based on minister-on-minister harassment.

The 9th Circuit, in contrast, has held that the ministerial exception does not bar hostile-work-environment claims against religious organizations. But to further confuse matters, the 9th Circuit recently applied the exception to a Catholic high school principal in California who claimed to be the victim of racial discrimination.

The plaintiff, Chris Orr, was the first Black principal at Sacramento’s oldest Catholic high school. Although Orr made harassment claims that could survive under circuit precedent, the panel held that the allegations were “so intertwined with the employment decisions that the claims cannot be separated.” Orr has stated that he will continue to litigate the case through every means possible, including requesting review by the 9th Circuit en banc. Will Orr seek review by the Supreme Court if he loses?

Assaults on religious freedom are happening with greater frequency and severity. Advocates for religious liberty, without an ally in the White House, will be turning once again to the Supreme Court for relief. And given the Court’s current composition, they have a strong chance of prevailing.

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