Supreme Court Delivers Big Wins for Religious Freedom
Will the Court apply this robust view of religious freedom in upcoming cases?
By TRAVIS WEBER Published on June 30, 2017
https://stream.org/supreme-court-win...gious-freedom/
"[L]aws . . . that single out the religious for disfavored treatment" are not permissible. So held a large majority of Supreme Court justices on Monday in Trinity Lutheran Church v. Comer. The Court ruled
7-2 that excluding a group from a Missouri grant program just because of its religious nature
violates the Free Exercise Clause of the First Amendment.
On the same day, the Court agreed to hear
Masterpiece Cakeshop v. Colorado Civil Right Commission. That case asks whether the First Amendment protects religious small business owners from
being forced to participate in same-sex wedding events.
And just one day later, the Court remanded
four cases dealing with whether religious schools can receive government aid for reconsideration
in light of its decision in Trinity Lutheran.
In short, it's been a good week at the Court for religious freedom.
At the crux of its Trinity Lutheran opinion, the Court observed that the government's position "puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program
or remain a religious institution."
The Court declared this unacceptable. The
Free Exercise Clause of the First Amendment bars the government from
forcing religious entities to choose between freely exercising their religion and
being involved in the public square. The fact that
seven justices voted for this view of the First Amendment is great news.
Will the Court apply this robust view of religious freedom in upcoming cases? We don't know. But it got off to a good start the next day with its remand of the religious school cases. Such remands are routine procedure. But the Trinity Lutheran ruling will
almost certainly help the schools when the lower courts look at their cases again.
The Cake Store Owner
But will this view of religious freedom extend to Masterpiece? Let's hope so. In the past several years — with
activists spurred on by Obergefell v. Hodges —
many small business owners have been
penalized by
coercive state and local governments.
Many of these cases involve owners who serve anyone who walks in the door. For religious reasons, they just don't want to be
forced to use their creative arts as a part of
same-sex wedding ceremonies....
...Gorsuch's Strong Defense of Religious Freedom
With Justice Neil Gorsuch on the Court, we are one step closer to that ideal. Besides voting with the majority in Trinity Lutheran,
he wrote a concurrence (joined by Justice Thomas)
outlining an even stronger view of free exercise. He also
critiqued the Court's suggestion that it might try to "discrimi*nate on the basis of religious status and religious use."
Justice Gorsuch pointed out that the two are often intertwined.
It's not the Court's job to separate them and grant greater protection to the former and less to the latter. "Does a religious man say grace before dinner?" he asked. "Or does a man begin his meal in a religious man*ner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... I don't see why it should matter whether we describe that benefit, say, as closed to Luther*ans (status) or closed to people who do Lutheran things (use).
It is free exercise either way."
In his first major religious freedom case, Justice Gorsuch stressed that one cannot separate religious actions from the beliefs out of which they flow.
For the sake of Jack Phillips, let's hope the rest of the Court agrees.