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How the Supreme Court Could Severely Hinder or Help Religious Liberty in its New Term

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WASHINGTON - Religious liberty could be a big topic in this upcoming US Supreme Court term. At least, that's what the legal experts at Becket, a leading defender of religious liberties, are expecting.

In a media call, Becket President Mark Rienzi first commented that last term's ruling that a World War I memorial cross located in Bladensburg, Maryland, did not have to be torn down or moved hinted at good news for future religious liberty cases.

"The justices emphasized that the point of the religion clauses is to foster a society in which people of all beliefs can live together harmoniously," Rienzi said. "And the justices explained that using the Constitution to force people to tear down a memorial cross would strike people as aggressively hostile to religion and wouldn't do the work that the First Amendment is supposed to do of finding a way for people of all range of different beliefs to live together harmoniously." 

Big Term for Religious Liberty

Rienzi expects it will be a big term if the high court decides to tackle and make broad rulings on a number of cases involving religious freedom.

"I actually can't recall a time in the last 20 years that there were this many key issues that seemed ready for decision and primed for decision and a court that seems open to them," he noted. 

One case is actually three combined into one and will determine if "sexual orientation" and "gender identity" are included in the legal definition of "sex." It's a huge matter because the federal government's Title VII prohibits employment discrimination based on sex.

If the court rules that the definition of sex does have to be broadened to include sexual orientation and gender identity, some organizations could be hit hard due to the owners' religious beliefs.  For instance, those that don't hire homosexuals or transgenders.

Religious Organizations Could Face a Flood of Lawsuits

"From roughly 1979 to 2017, a period of 38 years, all 11 courts of appeals that addressed this question held that Title VII doesn't prohibit discrimination based on sexual orientation or gender identity," Becket Vice President Luke Goodrich explained.  

But then two circuit courts of appeal reversed that long-time understanding. And now it's up to the Supreme Court to decide.

Goodrich talked about how this could affect religious liberty.

"Many religious organizations have long-standing beliefs about human sexuality, and they often expect their employees to live in accordance with those beliefs," he said.

'Going to Create Massive Church/State Conflict'

"But if the Supreme Court expands the scope of Title VII and agrees that discriminating based on sexual orientation or gender identity is an illegal form of sex discrimination, all of a sudden all of these religious organizations will be exposed to new lawsuits and potentially massive liability," Goodrich continued.

He added, "This applies to churches, to religious schools, religious social service providers – basically any religious organization that expects its employees to follow their religious standards of conduct could face new liability."

"An expansion of the scope of Title VII is going to create massive church/state conflict," Goodrich concluded. 

When Gov't Discriminates to Fight What it Sees as Discrimination

Becket Senior Counsel Lori Windham hopes the court will weigh into one case where Philadelphia is refusing to work with a Catholic foster care agency because that agency, Catholic Social Services, admits it wouldn't, if asked, place foster children with same-sex couples.  

Windham suggested that's a deadly blow to Catholic Social Services. 

"Being able to partner with the city is the only way that agencies in Philadelphia are able to provide foster care to children who are in Philadelphia's child welfare system," she explained.

If the court should take up Fulton v Philadelphia and side with the Catholics, it could maybe put a halt to a trend across the country of cities or states refusing to work with foster care or adoption agencies that won't put children with same-sex couples.

Windham is also hoping the court might finally take up Arlene's Flowers v Ingersoll, a case involving Christian florist Baronnelle Stutzman, who wouldn't do the floral arrangements for a same-sex wedding because of her religious beliefs.  

"For that, she was sued and penalized heavily by the state of Washington," Windham commented. In fact, if the court doesn't take up the case and rule for Stutzman, she's very likely to lose her business, her home, and her other assets.

A Blow Against Anti-Religious Bigotry?

Goodrich also talked about the upcoming Espinoza v. Montana Department of Revenue. It gives the court a chance to strike a death blow to so-called Blaine amendments. These are measures passed across the United States starting back in the mid-to-late 1800s when the Catholic faith and schools teaching it mushroomed.

In those days, America's public school system was heavily influenced by Protestant faiths and Catholicism was often met with fierce hostility.

"There were riots. Catholic buildings were burned down. Catholic children were expelled from the public schools," Goodrich explained. 

James Blaine, a Republican congressman from Maine, proposed a federal Constitutional amendment to keep any public funds from going to sectarian schools. But it failed, so many states passed their own "Blaine amendments," and dozens of states still have them.

A number of single low-income mothers in Montana have sued over Montana's ruling that because of its Blaine amendment, no tax breaks can go to people who help fund scholarships for children attending sectarian schools.

Ruling Could Go Way Beyond Schools & Scholarships

Goodrich said of the Espinoza case, "What is the court going to do with Montana's Blaine amendment? What is it possibly going to do with Blaine amendments in 37 other states?"

What the court decides about the Blaine amendments could have far-reaching consequences.

"This is not just about scholarships and vouchers for private schools," Goodrich added. "Blaine amendments have affected a wide variety of government programs, such as historic preservation grants where local governments give out funds to repair historic buildings, which may include churches."

"It also affects social services," he continued. "We had a case a few years ago involving a prisoner reentry program. The government funded a wide variety of programs that would help prisoners reenter society.  And under a state Blaine amendment, a state court at one point struck down a religious program that was helping prisoners reenter society."

"Basically this case could have a huge impact on the relationship between church and state, particularly when it comes to funding and the extent to which government funds can flow to both religious and non-religious entities," Goodrich noted. 

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About The Author


As a freelance reporter for CBN's Jerusalem bureau and during 27 years as senior correspondent in CBN's Washington bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, government, and God’s providential involvement in our world. Strand began his tenure at CBN News in 1985 as an evening assignment editor in Washington, D.C. After a year, he worked with CBN Radio News for three years, returning to the television newsroom to accept a position as a senior editor in 1990. Strand moved back to the nation's capital in 1995 and then to