Year in Review: Legal victories, but whither the culture?
Supreme Court justices regularly decided in favor of religious liberty
Every religious liberty case that came before the Supreme Court this year resulted in a win for advocates of the First Amendment freedom. But legal outcomes are not guaranteed where cultural attitudes toward religion—whether shaped by ignorance, indifference, or hostility—shift.
A poll by Becket Law found that while Americans remain supportive of religious freedom, their understanding of its source is abysmally low. Only 47 percent of Americans surveyed correctly identified religious freedom as protected by the First Amendment to the U.S. Constitution.
Americans also misunderstand free speech. A 2017 Cato Institute poll found that while participants voiced strong support for freedom of speech, they were also willing to censor, regulate, or punish a wide variety of speech and expressions they personally find offensive. And a 2019 survey by the Freedom Forum Institute found that 29 percent of people agreed the First Amendment goes too far, rising from 23 percent the year before.
If the cultural sands are shifting, how long before courts are pulled along?
Supreme Court majority backs religious liberty
For now, there is a reason for encouragement. In four important rulings, a conservative Supreme Court majority continued its drive to protect the rights of religious persons and organizations and restore a right understanding of the First Amendment’s religion clauses.
In Ramirez v. Collier, the court upheld the right of Texas death row inmate John Ramirez’s pastor to “lay hands” on and audibly “pray over” him during his execution. The nearly unanimous ruling in March rejected correctional officials’ security and administrative concerns as inadequate to override the inmate’s free exercise of religion.
In May, the high court returned to religion, this time with a focus on the free speech clause. In Shurtleff v. City of Boston, a unanimous court easily struck down a Boston policy that excluded a flag with the Christian cross from flying on a public flagpole. The justices said the refusal wrongfully discriminated based on religious viewpoint.
Evenhanded treatment of religious persons and entities was also the subject of the court’s June ruling in Carson v. Makin when it rejected an attempt by the state of Maine to bar parents from using state tuition assistance to pay for their children to attend religious schools where no public school was available.
As the term ended, the court brought to a close a seven-year battle by Washington state high school football coach Joe Kennedy. In the 6-3 opinion in Kennedy v. Bremerton School District, the court concluded that both the free exercise and free speech clauses of the First Amendment protected the coach’s right to pray at midfield following high school football games.
As the year drew to a close, the court heard oral arguments in one of the most anticipated cases of the current term, 303 Creative LLC v. Elenis, with Christian web designer Lorie Smith squaring off against a Colorado state agency set on forcing her to create websites for same-sex weddings contrary to her religious beliefs. A majority of the court seems predisposed to settle the case in favor of Smith—and, by implication, other wedding vendors like Bakersfield, Calif., baker Cathy Miller. But they reckoned with the challenge of where to draw the line. A decision is expected by June 2023.
Autonomy of religious institutions threatened
Back in 2020, the Supreme Court affirmed the broad autonomy of religious institutions in hiring and firing employees. In Our Lady of Guadalupe School v. Morrissey-Berru, justices said the “ministerial exception”—a doctrine barring courts from interfering in religious institutions’ internal matters—extends to teachers who perform “vital religious duties.”
But the line between where employees perform vital religious functions and do not remains blurred. A North Carolina Catholic school appealed after a federal judge ruled a teacher who taught only secular subjects did not perform vital religious duties, while an Indiana Catholic high school’s decision to fire a school guidance counselor for entering into a same-sex relationship was upheld.
A festering dispute involving Seattle Pacific University continues to demonstrate that threats to religious autonomy extend beyond employees’ religious roles to religious institutions’ ability to insist that all employees adhere to faith-based standards of belief or conduct. In September, a group of faculty and students sued the university’s board of trustees for keeping a policy of not hiring persons in same-sex relationships. A federal court in late October gave Washington state Attorney General Bob Ferguson, who sided with the group, a green light to continue his investigation of the school’s hiring practices, though the school has appealed the ruling.
Many thought that threats to faith-based adoption and foster care ministries would end with the Supreme Court’s ruling in Fulton v. City of Philadelphia. That 2021 decision protected Catholic Social Services’ right to place children with families who shared its Biblical beliefs on marriage and sexuality. But challenges continue. Texas challenged a Biden administration rule against states partnering with faith-based organizations late in the year. This occurred even as a settlement allowed Michigan’s St. Vincent Catholic Charities to place children according to its religious beliefs—suggesting that threats to the autonomy of faith-based child placement agencies are not over.
Parents and teachers battle liberal ideologies
Academic elites continued to push “woke” ideologies at universities and public schools. That included transgenderism and critical race theory, the latter often carrying the “anti-racism” label.
As many schools signaled their commitment to participate in the social gender transitions of children, parents began to reassert their constitutional rights to control the upbringing and education of their children—with mixed results. In July, the Wisconsin Supreme Court allowed a school district’s policy of not telling parents about students’ gender transition to stand.
But in October, a federal judge chastised school district officials in Pennsylvania for allowing a teacher to promote her own views on gender dysphoria and gender transitioning over parents’ objections. And a judge did not hesitate to side with a Kansas middle school teacher, upholding her right to communicate honestly with parents about students’ use of a preferred transgender name at school.
Festering disputes remain over so-called “anti-racist” training for teachers and instruction for students in public schools. Parents in one Virginia county who filed a lawsuit against the county late last year continue to push back against a school district policy that they say causes racial division as they await an appeals court hearing. A Virginia elementary school principal, Emily Mais, joined other parents who had already challenged race-based training by filing a lawsuit just before Christmas. For Leslie Elliot, a student in the graduate clinical mental health counseling program at Antioch University in Seattle, her school’s mandate that she take a “privileged identity” pledge forced her to put her education on hold as she pursued legal options.
Hope remains that schools will again become places of education and not social engineering. In one bright spot, a Massachusetts school district backed down after parents sued it over race-based affinity groups. Better, say some, would be a constitutional amendment protecting parental rights. But the conflicting court rulings suggest the scope of parental rights has yet to be fleshed out.
Restless hearts rest in God
Continued litigation over vaccine mandates, “conversion therapy” bans, and conscience rights for healthcare professionals reveal a changing society, one less accommodating toward those with religious beliefs. And for all the bluster over Twitter, Elon Musk, and the death of free speech, very little substantive has come of concerns over Big Tech dominance of the public square. Rather, it reveals that our commitment to free speech rests on moral grounds and on deeper reasons for respecting each others’ differences.
In a speech at Notre Dame Law School’s Religious Liberty Summit in Rome earlier this year, Supreme Court Justice Samuel Alito got to the heart of the challenge. “It is hard to convince people that religious liberty is worth defending if they don’t think religion is a good thing that deserves protection,” he said. “The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. That will not be easy to do.”
And yet Alito casts a hopeful eye to the future. “Our hearts are restless until we rest in God,” he said, echoing Blaise Pascal. “And, therefore, the champions of religious liberty who go out as wise as serpents and as harmless as doves can expect to find hearts open to their message.”
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