Justices for all

Rodney King offered a plaintive plea in the spring of 1992, hoping to quell deadly riots in Los Angeles. “People,” he said, “can we all get along?”

A more sophisticated form of King’s plea may be at the heart of an unusual number of U.S. Supreme Court decisions this term that impact religious liberty: Can Americans find a way to live together despite sharp differences in religious beliefs? A majority of the court justices seem to be charting a middle course they hope will settle that question.

Conservatives were shocked in June when the court interpreted Title VII of the Civil Rights Act of 1964 to bar the firing of an employee based on sexual orientation or gender identity. Even though its ruling only addressed private employers, many observers worried the 6-3 decision in Bostock v. Clayton County, Georgia would lead to an avalanche of budget-sapping litigation that would weaken the ability of religious organizations to act in accordance with their convictions.

Two more recent developments will test that prediction. On July 20, 22 states and the District of Columbia, citing Bostock, sued the U.S. Department of Health and Human Services for rolling back an Obama-era regulation for healthcare providers that outlawed discrimination based on gender identity. And in a lawsuit filed in federal court on July 16, Jesse Hammons, a woman who identifies as a man, claims the University of Maryland St. Joseph Medical Center engaged in discrimination by refusing to perform a hysterectomy due to the religious beliefs of the hospital’s administration.

But despite Bostock, a trio of decisions near the end of the Supreme Court’s term signaled strong support for religious liberty among a majority of the justices. These decisions may offer a safe harbor to those with religious convictions.

In Espinoza v. Montana Department of Revenue, the court struck down a Montana constitutional provision that barred public aid for religious schools. If states provide funds to private schools, said the court, they must not discriminate but must also provide funds to private religious schools. The ruling upheld a state tuition tax credit scholarship that did just that.

In Little Sisters of the Poor v. Pennsylvania, the court affirmed the right of a Catholic order of nuns not to offer contraceptive coverage to employees in its group health insurance plan.

And religious schools were heartened by a decision in Our Lady of Guadalupe School v. Morrissey-Berru, where the court ruled that the “ministerial exception”—a doctrine barring courts from interfering in religious institutions’ internal matters—extends to teachers who perform vital religious duties. That ruling will help protect schools’ employment decisions from governmental intrusion.

While these decisions aren’t groundbreaking, together they reaffirm a constitutionally protected sphere of religious autonomy and liberty—a sense that people, gay or religious, must be free to act upon their deepest convictions. Private employers with religious convictions must still reckon with Bostock’s holding, yet churches and religious institutions are being bolstered by the court’s affirmation of religious freedom.

“The court has signaled that religious liberty is a crucial part of maintaining a pluralistic society in which people can coexist with deep differences,” says Thomas Berg, a constitutional law scholar at the University of St. Thomas School of Law in Minneapolis. Berg notes that while the court in Bostock extended civil protections to gay, lesbian, and transgender persons, the majority in that case said it remained “deeply concerned” about protecting the rights of religious organizations.

Two cases to be argued in the court’s term beginning in October offer the justices opportunities to further strengthen religious liberty.

In Fulton v. City of Philadelphia, the court will determine whether the city can cut ties with Catholic Social Services over the organization’s faith-based objection to placing foster children with same-sex couples. The city is relying on a neutral public accommodations law that bars most businesses from discriminating based on sexual orientation or gender identity. The court’s ruling in Espinoza suggests it may similarly rule that Philadelphia cannot discriminate against religious agencies.

In the other case, State of Washington v. Arlene’s Flowers, Inc., the court will consider whether the state can punish florist Barronelle Stutzman for her Biblical beliefs about marriage, which preclude her from making custom floral arrangements for a same-sex wedding. The state cited Stutzman for violating a public accommodations law barring discrimination based on sexual orientation or gender identity.

With these religious liberty cases, the court is dealing with deeply polarizing issues that Congress, also polarized, is unable to resolve, says Berg: “A key historical purpose of religious liberty is to reduce cultural conflict by giving people assurance that their deep commitments will be protected.”

Societal peace may be beyond the purview of the Supreme Court. But a majority of the justices appear to be attempting some measure of judicial peace—and hoping we can all get along.