The Supreme Court’s 15-Case Winning Streak on Religious Liberty – Joe Carter

The Supreme Court closed out its most recent term last week with three significant victories for religious liberty—continuing a ten year series of wins for religious freedom.

“Religious freedom is on a massive, decade-long winning streak at the Supreme Court,” says Luke Goodrich, a religious liberty lawyer at Becket. “This 15-case winning streak hits every major area of religious freedom law: religious exemptions, religious autonomy, religious speech, religious symbols, and government funding for religious groups.”

Here are the fifteen most important Supreme Court victories involving religious freedom from 2011 to 2020:

1. Arizona Christian School Tuition Organization v. Winn (2011)

Question: Do the plaintiffs lack standing because they cannot allege that the Arizona tuition tax credit involves the appropriation or expenditure of state funds?

Ruling: In a 5–4 decision with majority opinion written by Justice Kennedy, the Court held that the petitioners could not challenge the tax credits for contributions to school tuition organizations that were religious.

Key quote: “If an establishment of religion is alleged to cause real injury to particular individuals, the federal courts may adjudicate the matter. Like other constitutional provisions, the Establishment Clause acquires substance and meaning when explained, elaborated, and enforced in the context of actual disputes. That reality underlies the case-or-controversy requirement, a requirement that has not been satisfied here.”

2. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)

Question: Does the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship?

Ruling: In a unanimous 9-0 decision with majority opinion written by Chief Justice Roberts, the Court held that a religious school teacher was a “minister” for purposes of employment.

Key quote: “Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer. The EEOC and Perich originally sought an order reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister it did not want, such an order would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers.”

3. Burwell v. Hobby Lobby Stores (2014)

Question: Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners?

Ruling: In a 5–4 decision with majority opinion written by Justice Alito, the Court held that the Religious Freedom Restoration Act allows for-profit companies to deny contraception coverage to employees based on a religious objection.

Key quote: “As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.”

4. Town of Greece v. Galloway (2014)

Question: Does the invocation of prayer at a legislative session violate the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content?

Ruling: In a 5–4 decision, with majority opinion written by Justice Kennedy, the Court held that the prayers at the town hall meetings did not violate the Establishment Clause.

Key quote: “An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.”

5. McCullen v. Coakley (2014)

Question: Is it constitutional to prohibit pro-life speech within 100 feet of abortion clinics?

Ruling: In a unanimous 9-0 decision with the majority opinion written by Chief Justice Roberts, the Court held that First Amendment prohibits laws restricting speech surrounding abortion clinic locations.

Key Quote: “Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.”

6. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. (2015)

Question: Can an employer be held liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant based on a religious observance or practice if the employer did not have direct knowledge that a religious accommodation was required?

Ruling: In an 8-1 decision with the majority opinion written by Justice Scalia, the Court held that in a disparate-treatment claim, an applicant need only show that the need for accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of said need.

Key Quote: “Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”

7. Reed et al. v. Town of Gilbert, Arizona et al. (2015)

Question: Does an ordinance restricting the size, number, duration, and location of temporary directional signs for a church violate the Free Speech Clause of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment?

Ruling: In a unanimous 9-0 decision with the majority opinion written by Justice Thomas, the Court held that the city could not make distinctions that preclude the church signs.

Key Quote: “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

8. Holt v. Hobbs (2015)

Question: Does the Arkansas Department of Corrections grooming policy violate the Religious Land Use and Institutionalized Persons Act by preventing Holt from growing a one-half-inch beard in accordance with his religious beliefs?

Ruling: In a unanimous 9-0 decision with the majority opinion written by Justice Alito, the Court held that the Arkansas Department of Corrections policy on beards violated the Religious Land Use and Institutionalized Persons Act of 2000.

Key Quote: “We do not suggest that [Religious Land Use and Institutionalized Persons Act] requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here.”

9. Zubik v. Burwell (2016)

Question: Does the availability of a regulatory exemption for religious employers regarding the Affordable Care Act’s contraceptive mandate eliminate the substantial burden on those organizations’ exercise of their religious freedom?

Ruling: In a unanimous decision, the Court issued an order that if the groups provide some type of notice to Health and Human Services that they want and are entitled to a religious exemption from the mandate, the government may not enforce the mandate directly against them, while the Court is pondering whether to review the case itself.

Key Quote: “Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.”

10. Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)

Question: Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment’s Equal Protection Clause?

Ruling: In a 7-2 decision with the majority opinion written by Chief Justice Roberts, the Court held that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.

Key Quote: “To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

11. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

Question: Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?

Ruling: In a 7-2 decision with the majority opinion written by Justice Kennedy, the Court held that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

Key Quote: “The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

12. The American Legion v. American Humanist Association (2019)

Question: Is the display and maintenance of a 40-foot tall cross on public land unconstitutional?

Ruling: In a 7-2 decision with the majority opinion written by Justice Alito, the Court held that the Bladensburg Cross does not violate the Establishment Clause.

Key Quote: “The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.”

13. Espinoza v. Montana Department of Revenue (2020)

Question: Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?

Ruling: In a 5-4 decision with the majority opinion written by Chief Justice Roberts, the Court held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Federal Constitution’s Free Exercise Clause.

Key Quote: “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.”

14. Our Lady of Guadalupe School v. Morrissey-Berru (2020)

Question: Do the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions but was not otherwise a “minister”?

Ruling: In a 7-2 decision with the majority opinion written by Justice Alito, the Court held that

Key Quote: “When the so-called ministerial exception finally reached this Court in Hosanna-Tabor, we unanimously recognized that the Religion Clauses foreclose certain employment discrimination claims brought against religious organizations. 565 U. S., at 188. The constitutional foundation for our holding was the general principle of church autonomy to which we have already referred: independence in matters of faith and doctrine and in closely linked matters of internal government.”

15. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020)

Question: Did the federal government lawfully exempt religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?

Ruling: In a 7-2 decision with the majority opinion written by Justice Thomas, the Court held that federal agencies have the authority under the Affordable Care Act to promulgate the religious and moral exemptions and did so in a manner free of procedural defects under the APA.

Key Quote: “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother…But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”

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