Religious liberty takes center stage
First Amendment freedoms on the Supreme Court docket in 2021
The American folk song “Keep Your Eyes On the Prize” gained popularity for its part in the Civil Rights Movement. But now, its title could suggest another movement: restoring the place of religious liberty for individuals and institutions in American life. First Amendment advocates are hopeful that three cases currently before the Supreme Court may help extend some of the gains of 2020 and check overzealous governmental officials.
Fulton v. City of Philadelphia is one of the most significant religious liberty cases up for a Supreme Court decision in 2021. The justices heard arguments in November. Foster parents Sharonell Fulton and Toni Simms-Busch are challenging Philadelphia’s March 2018 decision to stop placing kids through Catholic Social Services after a nearly century-long partnership with the agency.
The city ended the contract because the agency’s Catholic beliefs prevented it from placing children with unmarried persons or same-sex couples. Philadelphia said the policy violated its nondiscrimination ordinance, though no same-sex couples have actually applied to foster through the agency.
Becket’s Lori Windham, who argued the foster parents’ case, asked the court to revisit its 2000 decision in Employment Division v. Smith upholding laws that substantially impeded religious belief and practice as long as they were neutral and applied to everyone. Windham and many other constitutional law scholars say the government should have to prove a compelling interest and use the least restrictive means possible before burdening religious liberty under the First Amendment.
Uzuegbunam v. Preczewski, scheduled for argumentation on Jan. 12, could prevent further abuses of constitutional rights.
Georgia Gwinnett College student Chike Uzuegbunam is suing the college to protect his right to share his Christian faith on campus. In 2016, the school restricted student free speech to two small zones and required advance permission to use them. When Alliance Defending Freedom attorneys representing Uzuegbunam filed a lawsuit, the school revised its policy but did nothing to remedy the damage it had already done to students.
Lower courts said the policy change made the case moot unless it had caused financial damage. But ADF’s David Cortman argued a final judicial decision is necessary to prevent future misconduct and ensure government officials are held accountable for violating First Amendment rights.
A favorable decision could help others in similar situations, such as holding governmental officials responsible for targeting places of worship or religious schools with their COVID-19 restrictions, even if they later revised or retracted them, Cortman explained.
“The constitutional rights of these religious schools and churches have already been violated for almost a year now, and you can’t sweep that under the rug,” he said. “It’s a principle that has to be enforced if our Constitution is to retain any vitality.”
The Supreme Court already considered governmental hostility toward religious liberty in creative expression in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission. But it may revisit the issue. Washington floral designer Barronelle Stutzman filed a petition in September 2019, but the court has not indicated if it will take up Arlene’s Flowers v. Washington.
Stutzman declined, because of her faith, to design custom floral arrangements celebrating the same-sex wedding of a customer she had served for nearly 10 years. In her brief, Stutzman articulates constitutional concerns voiced by others in the industry that compelled participation in same-sex weddings violates free exercise of religion and free speech.
In Masterpiece Cakeshop, the justices condemned government officials’ overt hostility toward Christian baker Jack Phillips. If they rule in favor of Stutzman, the decision could extend free speech and religious liberty protections from nondiscrimination laws into other situations.
Luke Goodrich, attorney at the Becket Fund for Religious Liberty, said 2020 saw many gains for religious liberty and offered a positive take on the year ahead.
“There are certainly important challenges on the horizon, but we’re quite optimistic that the country’s long-standing commitment to religious freedom will hold firm and that people of faith will continue to be protected,” he said. “Over the long haul … the Supreme Court is very well aware of the importance to religious communities of forming and shaping their communities around their religious beliefs.”
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