Travis Weber is Director of the Center for Religious Liberty at Family Research Council. This article appeared in The Stream on June 30, 2017.
Will the Court apply this robust view of religious freedom in upcoming cases?
“[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. These business owners have tried to live their lives in peace and mind their own business. The controversies have come to them. When they decline to violate their deeply held beliefs, they are often dragged into court and sued by governments and activists alike. Adding insult to injury, most of the administrative tribunals and state courts have ruled against these business owners. That has put their livelihoods at risk.
Masterpiece is the first such case the Supreme Court has agreed to hear. The Court has already held that the First Amendment broadly protects speech — even offensive speech. Surely a small business owner like Jack Phillips who wants to live out his faith should get such protection. Just as in Trinity Lutheran, Phillips’ right to run his business should not be conditioned on him violating his faith.
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 “discriminate 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 manner? 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 Lutherans (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.