So far, the religious freedom docket is not particularly robust, although there are several pending petitions that deserve watching and, if granted, could make this a more important term.
The Supreme Court has accepted another same-sex marriage vendor case from Colorado. In this case, 303 Creative, a designer wishes to prepare web sites for heterosexual marriages but not for same-sex marriages. The state said she could not do that consistently with the pubic accommodations law that prohibits discrimination against sexual orientation, and the Tenth Circuit, 2-1, upheld the state. The Supreme Court has agreed to decide whether, by forcing her to associate and foster a message with which she disagrees, the web-site designer’s free speech rights would be violated. The case will be argued and decided next term.
Carson v. Makin, which is a follow-on case to Espinoza v. Montana Department of Revenue, decided two terms ago. The Supreme Court in Espinoza and previously in Trinity Lutheran had ruled that a state could not deny generally available benefits to a school simply because of its religious status, but reserved the issue of whether benefits could be denied based on how the religious organization would use the funds. Maine has a tuition assistance program that grants funding to private schools, but denies funding to schools when religion “permeates” the curriculum, bringing the “use” issue to the fore. Maine basically has adopted the “pervasively sectarian” case law of the Supreme Court that has largely been eroded during the last several decades but has not formally been laid to rest. The interesting personal angle in this case is that Justice Souter, who was a strong proponent of the “pervasively sectarian” view when he was on the high court, sat on the First Circuit panel that distinguished Espinoza on the status/use basis and upheld Maine’s refusing public assistance to pervasively religious schools. The current justices are very likely to rule against their erstwhile colleague, hopefully with a decision that will inter the “pervasively sectarian” case law once and for all and explain that the Free Exercise and Establishment Clauses do not work at cross purposes.
Ramirez v. Collier, which presents the issue of whether a prisoner to be executed by lethal injection has a free exercise right to have a minister lay hands on him and audibly pray and sing while the process takes place. Texas only allows the minister to be in the room if off to the side and silent. It seems unlikely that the state can marshal sufficient interests to overcome the prisoner’s rights, but states are given much wider latitude in prison situations, which also means that this case will likely be fact specific and not have significant repercussions however it turns out.
Another important petition that would seem to have a better chance than most to be granted is Gordon College v. DeWeese-Boyd. She was a social work professor at this college that requires all of its faculty to adhere to biblical standards and teach from a Christian worldview. She sued after she was denied tenure, and the school raised the ministerial exception to no avail in the Massachusetts courts. The case provides a good example of the danger of secular courts mucking around with a religious organization’s internal governance and deciding which employees need to follow its beliefs and practices and which do not. It presents the important question left open by Hosanna-Tabor and Our Lady of Guadalupe of how much deference should be given to the good-faith opinion of the religious institution on such matters.
In a somewhat surprising move at the end of last term, after holding the petition in the much-publicized same-sex-marriage vendor case of Arlene’s Flowers v. Washington for about a year pending its important decision in Fulton v. Philadelphia, the Court denied the petition outright, rather than granting it or granting it and immediately remanding for reconsideration in light of Fulton. A motion for reconsideration has been filed, and, although such motions are almost never granted, it has a greater chance than most. Of course, if granted it would present issues the Court side-stepped in Masterpiece Cakeshop.
Roman Catholic Diocese of Albany v. Lacewell is also worthy of attention, as it, too, has echoes of cases past. This case presents a free exercise challenge by nuns to New York’s requirement to provide abortion insurance coverage to employees; the law has an exemption for religious organizations, but limits it to those which serve their own congregants, excluding those like the nuns who primarily serve the poor or employ members of other faiths. This petition, as well as a few others pending, picks up where Fulton left off in that it presents the question of whether Employment Division v. Smith should now be overruled.
Falling further down the “likelihood of granting” are petitions in Seattle Union Gospel Mission v. Woods and New Life Church v. Fredericksburg, both of which involve courts not giving credence to a religious organization’s designation of who are its “ministers,” and Chaplaincy of Full Gospel Churches v. Navy, which challenges the Navy’s putting into the hands of denominational chaplains the ability to blackball the promotions of non-denominational military chaplains (who are promoted at a lesser rate). While all these cases are worthy of interest, none of them, in my view, has a good chance of a grant. But, of course, it is the rare term in which the Court does not dish out a few surprises. One of them may be provided by a “shadow docket” case involving mandatory Covid vaccinations being objected to on religious grounds or by the Court taking a case to challenge the “de minimis” rule for religious accommodations under Title VII, in a Covid-related case or otherwise.