Religion and the Roberts Court: A Transformation

With more than a year since the start of the pandemic, there have been a plethora of institutional developments impacting Americans from the small rural town to the extensive urban metropolis. Across the nation, towns, municipalities and states enacted lockdown rules and regulations to stop the spread of the virus, only to have them challenged by segments of the population. Pockets of religious worshippers, primarily of mainstream American religions, are the particular groups that have challenged lockdown rules. In many instances, they have argued that the rules disproportionately impact the function of churches compared with other establishments, like supermarkets, retail operators, shopping malls, etc.

In recent times, the Supreme Court has heeded the demands of these groups, carving out exemptions to restrictions on private gatherings enacted by certain states. In early November, a 5-4 majority struck down a New York executive order restricting attendance at houses of worship in high spread areas. While most of the justices disagreed on whether or not the case was moot, Justice Gorsuch seemed to lament that “[a]t a minimum…[the First] Amendment prohibits government officials from treating religious exercises worse than comparable secular activities…[y]et recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles'' (Roman Catholic Diocese of Brooklyn v. Cuomo, 2020). In February, a divided court struck down a California rule prohibiting attendance at places of worship, but upheld bans on singing and chanting, along with a 25% occupancy restriction (South Bay United Pentescostal Church v. Newsom, 2021). Recently the Court agreed to lift the bans in a 5-4 vote in the case Tandon v. Newsom (2021).

With the court’s recent decisions, along with a slew of high profile religious victories in the 2020 term, the New York Times recently asked “whether the Supreme Court’s majority is protecting the rights of the faithful or giving them favorable treatment” (Liptak, 2021). The question has sharply divided members of legal academia. For University of Notre Dame Law Professor Richard Garnett, the Roberts Court has “moved the law of religious freedom and church-state relations toward coherence and clarity, and better aligned it with American history, tradition and practice…” (Garnett, 2020). For UC Berkeley Law Professor Erwin Chemerinsky, however, the path of the Court is concerning as “the religion clauses are being interpreted to allow powerful religious groups to harm innocent third parties and to establish a privileged status within the political system, to the detriment of true religious liberty and diversity” (Chemerinsky, 2020). Though it is difficult to assess the validity of the professor’s remarks, there can be no doubt that the court’s handling of religion has transformed under the leadership of chief justice John Roberts.

Perhaps a relevant question is how, exactly, it has changed? A recent study by Lee Epstein, a Washington University Law Professor, and Eric Posner from the University of Chicago, sheds some light into the court’s rulings in cases involving religion. To start off, the study submits that during the periods under Chief Justices’ Warren, Burger and Rehnquist “the court ruled in favor of religion 58% of the time…,'' whereas under the Roberts Court “the win rate jumps to 81%” (11). The study also indicates that the types of religion cases have changed since the Warren Court. Under Warren, “religion cases were notable for protecting minority or non-mainstream religions, especially dissenting Christian denominations,” whereas under Roberts, some have argued that it has “extend[ed] protections to mainstream (MS) Christian groups and values'' (8). Specifically, “[t]he pro-MS Christian side won 44% of the cases in the Warren court, 52% in the Burger court, 57% in the Rehnquist court, and 85% in the Roberts Court…” (8). Factors accounting for recent MS religion outcomes include party affiliation, ideology and adherence to Catholicism. According to Epstein and Walker, 6 of the 9 justices are “[c]hristian, mostly Catholic, religiously devout (though this variable provides a weaker explanation than the others), and ideologically conservative,” whereas “the dissenters are religiously mixed, not devout, and ideologically liberal” (19). Due to this factor, Epstein and Posner contend that these justices form a bloc that may lean towards religion in cases that appear before the court.

While Epstein and Posner’s study investigates the overall outcomes of religious suits, the decisions of the Roberts court, especially in the 2020 term, shed some additional light on how these cases are addressed.

In late June, a 5-4 majority held that the free exercise clause prohibited Montana from employing a state constitutional provision that avoided funding private religious schools through a tax credit program (Espinoza v. Montana Department of Revenue, 2020). It should be noted that the provision of Montana’s constitution was similar to a majority of other state constitutions. In an opinion written by the Chief Justice, he explained “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (Id at 2261). In a concurring opinion, Justice Thomas, joined by Gorsuch, utilized an Establishment Clause argument by noting that “the modern view [of the Establishment Clause] which presumes that States must remain both completely separate from and virtually silent on matters of religion...is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion” (Id at 2264). In a dissent, Justice Breyer, joined by Justice Kagan, contended that “[i]f, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom” (Id at 2288). To many, the court’s decision was seen as a continuation of its ruling in Trinity Lutheran Church v. Comer (2017). In that case, a 5-4 majority held that the free exercise clause prohibited Missouri from excluding churches for a program that provided grants to refurbish playgrounds using recycled tires.

Not too long after, the court handed down another free exercise decision in Our Lady of Guadalupe School v. Morrissey-Berru (2020), ruling that employment-discrimination claims for catholic school teachers were foreclosed under the “ministerial exception” of the First Amendment. The case arose after a parochial teacher sued her school alleging it violated the federal Age Discrimination in Employment Act. The “ministerial exception” doctrine was solidified in a 2012 case, where a unanimous court found that a lawsuit filed by an ordained Lutheran school teacher was unconstitutional, as “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision” but with “internal [church] governance” (Hosanna-Tabor Evangelical Church and School v. EEOC, Id at 188). Writing for the 7-2 majority in the current case, Justice Alito observed that determining who qualified as a minister depended on “a variety of factors'' and that applying a “rigid formula” for determining a minister was unwarranted (Id at 2062-63). The Justice also noted that because the teacher in this case “play[ed] a vital part in carrying out the mission of the church,” she qualified under the exception, thereby barring her suit against the school (Id at 2066). Justice Sotomayor dissented, arguing that under the majority’s approach, a parochial school teacher “could be fired for any reason, whether religious or nonreligious, benign or bigoted, [and] without legal recourse” (Id at 2072). (Note: I have written a previous article, arguing that I agree with the court’s outcome in this case)

The same day Our Lady of Guadalupe was decided, the court released its opinion in the case Little Sisters of the Poor v Pennsylvania (2020). The case concerned whether or not the Health Resources and Service Administration (HRSA) could expand rules exempting religious employers from providing contraceptive coverage under the Affordable Care Act. Writing for another 7-2 majority, Justice Thomas contended that “[o]n its face...the provision grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover…” and that this discretion is “equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines” (Id at 2380). Justice Alito filed a concurring opinion, joined by Justice Gorsuch, explaining that it was not only “...appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it)” (Id at 2396). The late Justice Ginsburg filed a dissenting opinion, joined by Sotomayor, arguing that “for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree” (Id at 2400). She also added that the majority’s decision “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets” (Id at 2401). 

Perhaps the biggest case before the high court is one concerning a clash between religious freedom and LGBTQ rights. In Fulton v City of Philadelphia (2020), the justices are tasked with deciding whether a non-discrimination ordinance was applied in a neutral and generally applicable way to a catholic adoption agency that refused to do service with LGBTQ couples. The case also seeks to answer whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions that directly contradict the agency’s religious beliefs. At face value, this case presents a similar clash that was observed in a 2018 case, where a baker who refused to bake a cake for a gay couple. Deciding the case on narrow grounds, the late justice Kennedy argued that the Colorado law at issue, which prohibited discrimination against gay people in public accomodations, had to be applied in a neutral manner with regard to religion. Because the baker did not receive this neutral treatment with members of the Colorado Civil Rights Commission, there was a clear showing of hostility toward his religious beliefs, casting doubt on the fairness of the Commission's consideration of his claims (Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, Id at 1729). Justice Kennedy was also the deciding vote in the 2015 case of Obergefell v Hodges, which legalized the right of same sex couples to marry in all 50 states.

As the high court has shifted through the tenure of Roberts, most recently with the confirmation of Amy Coney Barret, it has undertaken a new approach to handling religion, which at times has clashed with the rights of other individuals. And as the court rules on these contentious issues, it will ultimately have to face the question of how far it may go in accommodating religion.

References

"Fulton v. City of Philadelphia." Oyez, www.oyez.org/cases/2020/19-123.

Chemerinsky , Erwin. “Symposium: The Unfolding Revolution in the Jurisprudence of the Religion Clauses.” SCOTUSblog, 6 Aug. 2020, www.scotusblog.com/2020/08/symposium-the-unfolding-revolution-in-the-jurisprudence-of-the-religion-clauses/. 

Epstein, Lee, and Eric Posner. “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait.” Supreme Court Review, 3 Apr. 2021, pp. 8–19.

Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246, 2261-2288 (2020)

Garnett, Richard. “Symposium: Religious Freedom and the Roberts Court's Doctrinal Clean-Up.” SCOTUSblog, 7 Aug. 2020, www.scotusblog.com/2020/08/symposium-religious-freedom-and-the-roberts-courts-doctrinal-clean-up/. 

Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Emp't Opportunity Comm'n, 565 U.S. 171, 188 (2012)

Liptak, Adam. “A Legal Winning Streak for Religion.” New York Times, 14 Apr. 2021, www.nytimes.com/2021/04/14/podcasts/the-daily/supreme-court-religious-cases.html. 

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380-2401 (2020)

Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2062-2072 (2020)

Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87 (U.S. Nov. 25, 2020)

South Bay United Pentecostal Church v. Newsom, No. 20A136 (20-746) (U.S. Feb. 5, 2021)

Tandon v. Newsom, No. 20A151 (U.S. Apr. 9, 2021)

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)