Promising outlook for religious liberty

Compared to last term, this term’s Supreme Court docket includes fewer cases related to religious liberty, but they are still significant. In its next session, which begins Oct. 4, the court will consider the use of government funds at religious schools, the extent of death-row inmates’ right to spiritual advisers in the execution chamber, and a state law challenging the abortion mandate of Roe v. Wade.

Last term, in Espinoza v. Montana Department of Revenue, the court struck down the state’s Blaine Amendment, which barred public aid from going to educational institutions “controlled in whole or in part by any church, sect, or denomination.” In Carson v. Makin, the court will consider a Maine tuition assistance program that pays private school tuition for students who live in rural areas where no public option exists. Lower courts upheld a state law that barred aid to “sectarian” schools where funds might incidentally go toward religious uses. Focusing on religious use rather than status makes the case slightly different from Espinoza. Becket Law’s Mark Rienzi said last year’s rulings on COVID-19 lockdowns suggest the justices prioritize the equal treatment of religious entities.

Thomas Berg, a professor at the University of St. Thomas School of Law, seconded that conclusion: “The decisions are increasingly clear that such exclusions unconstitutionally discriminate against religion, and I’d be very surprised if Carson didn’t continue the pattern.”

In Ramirez v. Collier, the court will consider whether the free exercise clause of the First Amendment requires Texas to allow a Christian death-row inmate not only to have his pastor present in the execution chamber but also to have him audibly pray while laying hands on him. After numerous emergency rulings staying executions over religious liberty questions, a full case may settle some of them once and for all.

Berg emphasized the importance of Ramirez, saying he hoped the court would find that “if we have the death penalty, we must treat death as a moment of profound importance for the prisoner and must protect his spiritual practice at that moment unless the state gives specific, well-founded reasons why such practices necessarily would cause safety risks.”

Dobbs v. Jackson Women’s Health Organization will likely prove this year’s blockbuster case. The court is weighing the constitutionality of a 2018 Mississippi law that bans abortion after the 15th week of pregnancy—offering the court an opportunity to reconsider the right to abortion in Roe v. Wade. While Dobbs does not implicate First Amendment issues, setting aside or restricting Roe could spare religious organizations from some of the effects of the controversial ruling. Last term, the court upheld the right of Little Sisters of the Poor, an organization of Catholic nuns, not to cover procedures like abortion in its employee healthcare plans. But even after a decadelong struggle, twin cases in California and Pennsylvania involving the nuns remain on hold while the Biden administration ponders its next move.

Two more cases that haven’t been accepted yet offer the justices an opportunity to clarify the rights of religious organizations to make employment decisions free of governmental interference. In Gordon College v. DeWeese-Boyd, the court could revisit the scope of the ministerial exception. The evangelical school argues all faculty are ministers because they are expected to integrate faith and teaching, therefore the government cannot regulate their hiring and firing. And Seattle’s Union Gospel Mission v. Woods asks whether religious organizations have a right to hire only employees who agree with their statement of faith and standards of conduct.

The justices also have an opportunity to rehear Arlene’s Flowers v. Washington. Religious liberty advocates were disappointed when the court earlier this summer declined to review florist Barronelle Stutzman’s long-running challenge to a Washington state law that would have forced her to design custom floral arrangements for same-sex weddings.

In addition to those standouts, cases are moving through the federal court pipeline involving the right of a Washington high school football coach to have his own postgame prayer on the field, the right of an organization to fly a cross-adorned flag above Boston’s city hall, and a challenge to Indiana University’s mandatory vaccination policy—in short, enough to keep busy a court that has shown a high degree of interest in religious liberty questions.