Year in Review: Hopeful gains for religious liberty
On balance, the Supreme Court favored liberty protections in 2021
Like 2020, this year has seen continued threats to religious liberty. Yet First Amendment protections were bolstered by a Supreme Court majority that seems committed to protecting the rights of the faithful—particularly those whose views are increasingly disfavored in post-Christian America. As always, bad news is tempered by the good and by a belief in God’s providence. Here are top stories from the liberty beat in 2021.
Pumping the brakes on emergency powers
In February, a Supreme Court majority struck down California Gov. Gavin Newsom’s near-total ban on indoor worship, following a late 2020 ruling where the court blocked New York City’s numerical caps on worship. A conservative majority concluded that California could not treat churches differently than other businesses that capped capacity at 25 percent. “Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution,” wrote Justice Neil Gorsuch. Two months later, Gorsuch joined an unsigned opinion in Tandon v. Newsom that blocked discriminatory California worship restrictions at in-home gatherings.
Efforts to curb executive powers didn’t stop with the courts. Over half the state legislatures passed laws restricting the power of governors and health officials to issue broad edicts—particularly those banning worship gatherings—including Delaware and Arkansas. No one, of course, wanted a pandemic to help draw the line on the power of governmental officials, yet the outbreak showed how officials can justify the use of power in a time of real or perceived crisis. It’s a helpful reminder of the Founders’ wisdom in providing a government with a system of checks and balances.
Corralling vaccine mandates
Christians have differing opinions about the wisdom and ethics of taking COVID-19 vaccines, but even many in favor of vaccines question the wisdom of mandating them. Some courts seem to agree, given a flurry of rulings against Biden administration mandates. A week before Christmas, a federal appeals court panel lifted a hold placed on an Occupational Safety and Health Administration (OSHA) vaccine mandate applying to businesses of 100 or more employees. Business organizations and religious groups have asked the Supreme Court to block the mandate, and last week the court set expedited oral arguments in the case for Jan. 7. A separate mandate for federal contractors is currently blocked.
A federal mandate requiring vaccination for healthcare workers at facilities that receive Medicare and Medicaid funds remains shut down, though a federal appeals court recently limited it to states that challenged the rule—meaning healthcare workers in about half the states are not required to be vaccinated. (Justices will also hear oral arguments in that case on Jan. 7.) In contrast, courts have so far upheld state mandates impacting healthcare workers in New York, Maine, and Rhode Island.
Following evidence that the military has not granted a single religious exemption to its vaccine mandate, a federal judge ordered the military to detail by early January how it has dealt with over 16,000 exemption requests by service members. The scope of religious exemptions remains a challenge: Some employers and government officials have asked intrusive questions to test the sincerity of employees’ religious beliefs. At year-end, much remains unsettled about the mandates—their legality will continue to be hotly litigated well into 2022.
Protecting adoption agencies
Faith-based adoption and foster care ministries remained a hot spot in the conflict between religious liberty and gay rights. Many such ministries, holding to Biblical beliefs, place children only with Christian couples made up of one woman and one man. Yet cities, counties, states, and the federal government have enacted laws barring discrimination based on sexual orientation or gender identity when placing children.
In a surprisingly unanimous ruling in June by the Supreme Court in Fulton v. City of Philadelphia, the court sided with Catholic Social Services, a major foster care agency in the city. Since Philadelphia’s nondiscrimination ordinance allowed city officials to exempt agencies from the rules for certain reasons, the court concluded they were wrong to deny a religious-based exemption to the Catholic agency.
Yet, the battle goes on. The Biden administration recently resurrected an Obama administration rule requiring anyone receiving Medicare or Medicaid funds (including state-licensed foster care agencies) from discriminating against same-sex couples. The move prompted a lawsuit by Holston United Methodist Home in Tennessee, which argued the rule violated its religious liberty. Some agencies that thought they had dodged a bullet, like South Carolina’s Miracle Hill Ministries, are now back in the crosshairs.
School fights and victories
The push to expand gay rights didn’t stop with child-placing agencies. Activists attempted to end federal funding at Christian colleges that uphold Biblical sexual conduct, and officials targeted gender-specific dorms at Christian colleges and sought to force faith-based rescue missions to house transgender clients according to their preferred gender. Those cases remain unresolved.
Yet courts roundly rejected efforts to require Christian student groups at universities to open leadership to non-Christians. Federal appeals courts held University of Iowa officials liable for “deregistering” InterVarsity Christian Fellowship and Business Leaders for Christ, and they rejected an attempt to force Fuller Seminary to serve students living in same-sex marriages.
A right not to create
Gay rights and religious liberty also continued to collide among creative professionals.
Jack Phillips, the Masterpiece Cakeshop baker in Colorado who has fought to operate his business in accord with his beliefs for over a decade, won a Supreme Court victory in 2018 protecting him from baking a same-sex wedding cake. But he remains under attack in litigation over his declining to design a cake celebrating a gender transition. Washington florist Barronelle Stutzman in June lost a bid to have the U.S. Supreme Court review her case, in which she lost the right not to create custom floral arrangements for a same-sex wedding. The 77-year-old grandmother agreed in November to sell her business in order to avoid paying millions of dollars in damages and attorneys’ fees.
Religious liberty advocates are now pinning their hopes on the case of Lorie Smith, a Colorado web designer who seeks to protect her right not to design websites for same-sex weddings. Smith was snagged by the same broad state nondiscrimination law used against Jack Phillips a decade ago. After a federal appeals court ruled against Smith earlier this year, she appealed to the Supreme Court, where her petition remains under consideration.
God’s kingdom prevails
Some criticized John MacArthur’s comment in March that religious freedom is “meaningless,” yet the California pastor is surely right in affirming that God’s purposes will stand regardless of court decisions or “what law governments make or don’t make.” As the year closes, we can have hope in God’s words to an Old Testament prophet: “My counsel shall stand, and I will accomplish all my purpose” (Isaiah 46:10).
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