News in review: Religious liberty in the courts

MARY REICHARD, HOST: It’s Tuesday the 27th of December, 2022. We’re so glad you’ve joined us for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We continue this week’s review of top news of the year.

Today, developments in religious liberty. And here to talk about it is WORLD reporter Steve West.

REICHARD: Welcome, Steve!

STEVE WEST, REPORTER: Thanks Mary. Well, like any year, there’s good and bad.

REICHARD: Let’s start with the good news–the Supreme Court.

WEST: Yes! A conservative Supreme Court majority continued its drive to protect the rights of religious persons and organizations last year. The court kicked it off with Ramirez v. Collier, upholding the right of Texas death row inmate John Ramirez’s pastor to “lay hands' on and audibly “pray over” him during his execution. What that almost unanimous ruling indicated is that free exercise of religion is a priority, and it takes a compelling governmental interest to override it.

REICHARD: I’ll add if you’d like to delve deeper into that case, we covered it on Legal Docket Podcast. I’ll link to it in today’s transcript. It’s called Death Row Prayer. You’ll hear from John Henry Ramirez, the inmate, who Texas executed in October.

Moving on now, the court strengthened a principle of fairness this past term. One example I can think of is the court struck down lockdown orders during the pandemic that left open stores but closed churches.

WEST: That’s right. And in cases this, it made clear that religious people and organizations must receive even-handed treatment by the government. In Shurtleff v. City of Boston, a unanimous court struck down a city policy that excluded a flag with a Christian cross on it. The court said that was wrongful discrimination based on religious viewpoint. And then, in June, fair treatment came up again. In Carson v. Makin, it rejected an attempt by Maine to bar parents from using state tuition assistance to pay for their children to attend religious schools. This is an area where no public school is available so the state allowed use of the money for non-religious schools.

REICHARD: Well, most people have heard of Coach Kennedy, the praying football coach. Tell us about that.

WEST: For seven years Washington high school football coach Joe Kennedy has been trying to establish his right to pray a short, silent prayer, on his own, at midfield following high school football games. In June, he finally got it. In Kennedy v. Bremerton School District, the court said both the free exercise and free speech clauses of the First Amendment protected his right to pray–and his job.

REICHARD: That’s another one we covered in depth on Legal Docket Podcast. I’ll link to that one, too. It’s called Level Praying Field.

Okay, Steve, let’s talk about the current term that began in October this year.

WEST: The big case to watch now involves Colorado website designer Lorie Smith. That was argued early this month. Smith challenged the same law in Colorado that snagged masterpiece Cakeshop baker Jack Phillips. The state law requires her to design websites for same-sex weddings if she designs websites for any weddings. That would violate her religious convictions. It’s likely she will win, but as always, it’s how she wins that matters.

REICHARD: Alright, let’s highlight some other areas where trouble is brewing and where cases have not yet reached the Supreme Court.

WEST: Well, as you know, a lot happens in the lower courts, and I’ll highlight just two areas of the many. First, threats to the ability of churches, Christian schools, and other religious institutions to operate in line with their convictions. Back in 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court said a doctrine that bars courts from interfering in religious institutions’ internal matters applies to teachers who perform “vital religious duties.” That’s a doctrine called the ministerial exception.

But the lines are blurry. Meaning, which employees perform vital religious functions and which do not? For example, a Catholic school in North Carolina. A federal judge ruled a teacher there who taught only secular subjects wasn’t doing vital religious duties. But in Indiana, a Catholic school’s decision to fire a school guidance counselor for entering into a same-sex relationship was upheld. So courts are still working this out.

REICHARD: What about adoption and foster care agencies?

WEST: We thought that threats to faith-based adoption and foster care ministries would have ended with the Supreme Court’s ruling in Fulton v. City of Philadelphia. That 2021 decision protected Catholic Social Services’ right to foster child placements and adoptions in accordance with its Biblical beliefs on marriage and sexuality. Yet challenges continue. Texas challenged a Biden administration rule against states partnering with faith-based organizations late in the year.

REICHARD: I know that you have also been writing more about parental rights. We’re used to hearing about free speech and religious liberty, but not so much about parental rights. Why?

WEST: Mainly because this right is a natural right that courts have recognized. It was assumed, like air we breathe. That is, until schools became hotbeds of progressive ideology, pushing transgenderism and critical race theory. Let’s use transgenderism as the prime example. Many schools are committed to ushering children into gender transition, and parents have sued. But the results of this litigation have been mixed.

A school district policy in Wisconsin was allowed to stand that says the school need not tell parents of their child’s gender transition. Yet a few months later, a federal judge chastised school officials in Pennsylvania for allowing a teacher to promote her own views on gender dysphoria and gender transitioning over parents’ objections.

These conflicts will continue, particularly as Americans increasingly attach less value to religion. But we can pray that the Lord will change hearts. He majors in great reversals.

REICHARD: Steve West writes about religious liberties for WORLD Digital. You can read his work at WNG.org. You can also subscribe to his free weekly newsletter on First Amendment issues, called Liberties. Steve, always good to have you on.

WEST: Mary, Merry Christmas.

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