Symposium: Amid polarization and chaos, the court charts a path toward peaceful pluralism

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Mark Rienzi is president of the Becket Fund for Religious Liberty, which represents parties or amici in many of the cases described below, including Bostock v. Clayton County, Little Sisters of the Poor v. Pennsylvania, Our Lady of Guadalupe School v. Morrissey-Berru, Espinoza v. Montana Department of Revenue, Fulton v. City of Philadelphia and Tanzin v. Tanvir. Rienzi is also a professor of law at the Catholic University of America Columbus School of Law, and a visiting professor at Harvard Law School.

This term had it all: blockbuster opinions, a presidential impeachment trial and a global pandemic that closed the court, necessitating historic oral arguments by telephone. It was a stormy year for the nine justices who — like the nation they serve — were often deeply divided over important questions and dealing with chaotic circumstances.

Amid the turmoil, there was one area of the law in which the justices seemed to be weaving together a set of precedents that could nurture some long-term peace. The term’s religious liberty decisions touched on a wide variety of subjects: teachers at religious schools, religious exemptions from federal mandates and state constitutional provisions rooted in anti-Catholic bigotry. But all of the court’s religion-related decisions harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society.

The court’s move toward anchoring a pluralistic approach within the law of religious liberty is part of a long-term trend. For example, just last term, in American Legion v. American Humanist Association, a seven-member majority emphasized that “the Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously.” And the court looks set to extend the trend next term, when the court hears another major religious liberty case on the merits, Fulton v. City of Philadelphia.

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The court’s first discussion of religious liberty this term came in its decision in Bostock v. Clayton County, in which the court interpreted Title VII of the 1964 Civil Rights Act to prohibit employment discrimination on sexual orientation and gender identity grounds. In the course of responding to religious liberty arguments, the court recognized that applying that rule to religious employers — many of whom have deeply-held beliefs related to sex and marriage — could be problematic. The court explained that the Constitution’s free exercise clause “lies at the heart of our pluralistic society” and that the justices were “deeply concerned with preserving the promise of the free exercise of religion.” The court also pointed out Title VII’s “express statutory exemption for religious organizations” and the Religious Freedom Restoration Act, which “operates as a kind of super statute, displacing the normal operation of other federal laws.”

To be sure, the court emphasized that the exact interaction between these overlapping protections and Title VII was not at issue. But the heavy focus on religious liberty in a case that did not present the question strongly suggests that the six-justice Bostock majority understands that the Constitution and federal law provide strong protections for the rights of religious entities to act in accordance with their beliefs. And the three dissenting justices were, if anything, even more emphatic in emphasizing the rights of religious groups in the context of broad Title VII protections.

The court’s next case to touch on religion was Espinoza v. Montana Department of Revenue, in which it rejected a Montana state constitutional provision that excluded religious schools from participating in public programs. The state provision was part of the wave of “Blaine Amendments” originally enacted in the 1800s as a way of keeping Catholic immigrants from setting up their own school system (and escaping the then-Protestant character of the public schools). The court rejected Blaine Amendments as “born of bigotry” and having a “shameful pedigree,” leading to discrimination that is “condemned” by the First Amendment.

Espinoza is a powerful victory for pluralism, in both historical and present-day terms. Historically, Blaine Amendments were created precisely to force an immigrant minority to conform to the majority’s religious and cultural views. And in the modern era, Blaine Amendments were being used in Montana and elsewhere to tell religious groups that relinquishing their religious character was a prerequisite to equal participation in society. Espinoza rejects both the historical provenance and the modern usage of such laws, and it precludes such government-imposed conformity as “odious to our Constitution.”

The last two merits decisions this term concerning religious liberty came on a single day. The first was Our Lady of Guadalupe School v. Morrissey-Berru, which concerned the ministerial exception rooted in both religion clauses. There, a 7-2 majority ruled that nondiscrimination laws like the Americans with Disabilities Act and the Age Discrimination in Employment Act cannot constrain the freedom of religious groups to choose the teachers who will pass on the faith to children. This is true even if the school does not rely on an overtly religious reason for its employment decision, and it is true even if the teacher lacks a religious-sounding title or special religious training. Rather, “[w]hat matters, at bottom, is what an employee does.” If the employee has religiously important duties like teaching the faith, then the government cannot interfere in the employment decision, even if the employee also has many other secular duties. The Constitution protects religious autonomy, even if the group’s values do not conform to those of the governing majority.

As in Bostock, the dissenters (this time Justices Sonia Sotomayor and Ruth Bader Ginsburg) did not seem to disagree about many of the key religious liberty points. They acknowledged the ministerial exception as “extraordinarily potent” and reaffirmed their support of the court’s 9-0 endorsement of the ministerial exception for a Lutheran teacher in the 2012 case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Their disagreement concerned not so much the law but “disputed facts” in a “context-specific” analysis. Thus, the opinions in Our Lady show all nine justices recognizing the importance of allowing religious groups to make employment decisions in accordance with their beliefs, even when those decisions implicate weighty societal interests like nondiscrimination. This constitutional holding mirrors the broad agreement suggested in Bostock’s discussion of religious autonomy in the context of Title VII.

In Little Sisters of the Poor v. Pennsylvania, the court’s analysis focused on statutory issues rather than constitutional ones. But again the court ruled in favor of the religious party, here Catholic nuns who object to complying with the federal contraceptive mandate. The court firmly rejected the states’ argument that federal agencies, when issuing regulations on the scope of the mandate, should not have considered the Religious Freedom Restoration Act. That argument, which had been accepted by some lower courts, treated RFRA as solely a judicial remedy and not a directive to be implemented by federal agencies. The Supreme Court disagreed, noting that it is “beyond dispute” that Congress intended RFRA to apply to “all Federal law, and the implementation of that law,” and that the agencies were right to consider it. Little Sisters thus echoes Bostock’s observation that RFRA is a “super statute” requiring federal agencies and federal laws to yield when they burden religion without a compelling need.

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The decisions in Bostock, Espinoza, Our Lady and Little Sisters show a court systematically building precedent on the foundational idea that religious freedom can help people in a diverse, pluralistic society live together in peace — even amid deep disagreements over fundamental issues. Properly understood, religious liberty protections can help society avoid zero-sum disputes in which one side of a polarized debate must win a complete victory, while the other must be completely vanquished or excluded. Although the justices do not always agree on each application of these principles to particular factual scenarios, they do seem largely in agreement on the principles themselves, which is good for both the court and the country.

That general agreement on first principles may explain why the court already has several significant religious liberty cases on its docket for next term. For example, in Tanzin v. Tanvir, a case held over from last term due to COVID-19, the court will consider the claim of Muslim petitioners arguing that RFRA allows them to collect a damages remedy from officials who violated their rights. In Uzuegbunam v. Preczewski, the court will consider whether state governments can avoid facing religious freedom and other First Amendment claims by ceasing challenged conduct during a lawsuit to avoid punishment. And the court will have at least two petitions (Small v. Memphis Light, Gas & Water and Dalberiste v. GLE Associates) presenting the issue of whether it should revisit its 1979 decision Trans World Airlines v. Hardison, which sharply curtailed religious accommodations for employees. All of these cases provide an opportunity for the court to continue its project of enforcing both constitutional and statutory protections designed to allow for a pluralistic society in which people with varied beliefs can coexist in peace.

In that regard, Fulton may be the court’s most consequential case of the term. The case presents issues of profound consequence not just for religious foster-care and adoption providers, but for the meaning of the free exercise clause. The case involves Catholic Social Services of Philadelphia, which pioneered care for orphans and foster care in the city. It’s been doing that work for more than a century, and today it partners with foster parents like Sharonell Fulton to care for children. But in 2018, city officials began using their monopoly power over foster care to exclude CSS and foster parents like Fulton from taking in more foster children. City officials took this step because CSS cannot provide written “home study” endorsements for same-sex couples, but instead does something commonly done for secular reasons: provide a referral to help a family find the right agency for them. Even though no same-sex couple ever requested an endorsement from CSS, the city stopped placing children with any of the agency’s families, told CSS how it ought to interpret Catholic teaching and changed its rules to prohibit CSS from continuing to work with the city.

The court granted certiorari to consider not only whether Philadelphia’s actions violate the First Amendment, but also whether to revisit its 1990 decision in Employment Division v. Smith. That decision, which promised a more administrable standard for free exercise claims, has instead splintered the lower courts over its interpretation. Last year, in a statement respecting cert denial in Kennedy v. Bremerton, four justices openly criticized Smith as a decision that “drastically cut back on” free exercise protections. In Fulton, the court could overrule Smith, or it could rule for the foster parents while declining to apply Smith. But it is difficult to envision the court embracing an understanding of the First Amendment that allows the government to exclude a religious agency from social service work for children in need — a cause championed by the church for centuries — just because the agency follows what the majority in Obergefell v. Hodges called “decent and honorable” religious beliefs about sex and marriage. It would be far more consistent with the court’s recent decisions to hold that the free exercise clause ensures space for people to have different beliefs about important issues like sex and marriage without being punished by the government. Doing so would continue the court’s long-term trend of protecting the freedom to differ. Here, that would mean a world in which same-sex couples are free to foster, churches remain free to follow their faith and neither needs to vanquish the other to live an authentic life — and help children.

By next summer, we may well be looking back in appreciation on these two terms as a time in which broad majorities of the court made clear that — despite the storms raging across the political landscape and the chaos of the pandemic — a robust understanding of religious liberty can be an essential peacemaking mechanism, one that offers the prospect of de-escalating the culture wars and truly preserving “a society in which people of all beliefs can live together harmoniously.”