Religious interest groups are queuing up a series of high-profile appeals at the Supreme Court this fall that could further tear down the wall separating church and state, seeking to take advantage of a friendly 6-3 conservative majority that has rapidly pushed the law in their favor in recent years.
Catholic groups are challenging a New York State requirement that health insurance plans cover medically necessary abortions, for instance. A group of Muslim and Eastern Orthodox parents in Maryland want to opt their elementary school children out of reading books about gender and sexuality. And a Tampa synagogue hopes to advertise its annual ice-skating themed Hannukah celebration on public buses.
After winning a string of major victories from the court in recent years, several of the groups involved are anxious for a further expansion of the First Amendment’s free exercise clause, which guarantees the right to practice religion free of government interference.
“The free exercise litigators think they’ve got the votes now and they’re being pretty aggressive about pushing cases up there,” said Douglas Laycock, a University of Virginia law professor and a leading authority on religious law. “What you’re seeing is a response to the conservatives’ enthusiasm for free exercise.”
Some of the cases will be on the agenda Monday when the justices return to consider appeals that have piled up during their summer recess. In coming days, the court will announce which of those appeals it will take up and decide by next summer.
Expanding protections for religion under the First Amendment has been a goal for some of the court’s conservatives for years. Justice Samuel Alito, for instance, told an audience in Ohio this year that freedom of religion is “imperiled.”
Days later, an activist released secret recordings of Alito at a Supreme Court event agreeing with the premise that faithful Americans should “return our country to a place of godliness.”
Speaking at Catholic University of America on Thursday, Justice Brett Kavanaugh said he believes the court has made “correct and important strides” on religion during the six years he’s been on the bench.
“We’ve reinforced – maybe built – but certainly at a minimum reinforced a critical principle of religious equality and religious liberty,” Kavanaugh said.
Justice Neil Gorsuch dedicated a portion of a book he published this summer to the issue of religion, highlighting a unanimous decision from the court in 2021 that backed a Catholic foster care agency that declined to screen same-sex parents.
“The right to think and express religious beliefs is a kind of canary in the First Amendment coal mine,” Gorsuch wrote in the book. “When the spirit of the times breeds censure, it is often the first to go.”
Few groups back many appeals
The Supreme Court last decided a case with ties to religion in 2023, siding with a graphic designer in Colorado who wanted to decline to make websites for same-sex weddings.
That case was decided as a matter of free speech, not religion, but the designer said she didn’t want to make the websites because same-sex marriage violated her religious convictions.
When the justices meet on Monday to consider additional appeals at its so-called “long conference,” they will be confronted with at least six cases that involve religion or that have ties to religious groups. One involves a Rastafarian man, Damon Landor, who wants to sue for damages after corrections officers in Louisiana cut off his dreadlocks.
Landor had handed officials a copy of an appeals court ruling from 2017 allowing prisoners to have dreadlocks. The guards tossed it in the trash. They then handcuffed him to a chair and shaved his head.
The New Orleans-based 5th US Circuit Court of Appeals ruled against Landor last year, saying it “emphatically” condemned “the treatment that Landor endured,” but an earlier appeals court precedent settled the case against him.
Another appeal the justices will discuss at their Monday meeting comes from an Orthodox synagogue, Young Israel of Tampa, which sued the regional transit authority for declining to accept advertising promoting a “Chanukah on Ice” celebration at a local ice rink. The synagogue framed the transit authority’s decision as “blatant viewpoint discrimination” in violation of the First Amendment.
The Atlanta-based 11th US Circuit Court of Appeals didn’t take up that broader argument but nevertheless sided with the synagogue in January, a decision that allowed the transportation authority to tinker with its ban on religious advertising. The synagogue appealed to the Supreme Court, looking to shut down the ban entirely.
Many of the current cases come from a handful of groups that have had considerable success at the Supreme Court in recent years. Becket, a Washington, DC, public interest legal group, is behind the New York abortion case, the appeal over Hannukah ads and a case from parents who want to take their children out of the classroom when books about gender identity and sexuality are read.
Alliance Defending Freedom, a Christian legal advocacy group based in Arizona, is challenging Biden administration guidance that requires emergency abortions in some situations. Earlier this year, officials in Idaho filed an appeal at the Supreme Court over that same guidance. The Supreme Court ultimately dismissed the case because it was unclear whether the state’s ban directly conflicted with the Biden administration’s policy.
ADF is also defending South Carolina’s decision in 2018 to cut off Medicaid funding for Planned Parenthood.
Abortion returns?
Becket has landed several significant appeals at the Supreme Court just this month, including the case challenging New York’s insurance requirement for certain abortions – a policy that is in place in at least nine other blue states, according to the National Women’s Law Center. A group of New York nuns are among those challenging that law, arguing it imposes an “immense” burden on their “deep-seated religious conviction.”
If the court agrees to hear that appeal, it would mark the second year in a row in which abortion has featured prominently on its docket since the conservative justices overturned Roe v. Wade in 2022. Earlier this year, the court rejected a lawsuit challenging the Food and Drug Administration’s approach to regulating the abortion pill mifepristone and it allowed abortions in medical emergencies in Idaho, despite a strict state ban on the procedure in that state.
Becket also filed an appeal this month challenging the federal government’s decision to transfer a 2,422-acre parcel of land in Tonto National Forest in Arizona to a mining company. The land sits atop the world’s third-largest deposit of copper ore. But it is also home to a sacred site for the Western Apache tribe. Mining the land would destroy that site.
The case could implicate other religious practices on federal land. Dozens of churches are situated within national parks, according to Becket.
Targeting a controversial precedent?
Religious interests have won seven major cases since 2021, not including several significant victories on the high court’s emergency docket during the Covid-19 pandemic.
Last year, the court backed a mail carrier and evangelical Christian who said the United States Postal Service violated federal law by failing to reasonably accommodate his inability to work on Sundays.
A year before that, the court’s conservatives aligned to throw out a Maine prohibition that barred schools offering religious instruction from receiving taxpayer funding. The conservative majority coalesced again that year to reinstate a high school football coach near Seattle who lost his job after offering prayers on the 50-yard line.
Luke Goodrich, senior counsel at Becket, said that religious liberty shouldn’t be a partisan issue. Nor, he said, is it necessarily a Christian issue.
“The goal is to shape the law in the way that religion and religious expression is accepted as a natural part of human culture,” he told CNN. “As a matter of principle, it extends to people of all faiths.”
Critics say the court’s march toward expanding religious rights – often in cases decided along ideological lines – is reshaping the way Americans have for decades understood the relationship between the government and religion.
“We are bracing ourselves for more rulings in lockstep with the White Christian nationalist agenda that is becoming more clear to more Americans every day,” said Rachel Laser, president of the Americans United for Separation of Church and State. “When the Roberts court rules on religion, it’s almost always coming down in support of not just religion, but of mainstream Christian interests.”
In 2021, a unanimous court ruled that Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex foster parents. What the court declined to do then was overturn a 1990 precedent, Employment Division v. Smith, that makes it easier for government to burden religious exercise as long as the law at issue applies equally to everyone.
Justice Amy Coney Barrett, in a concurrence joined by Kavanaugh, said she had concerns with the precedent – but also seemed wary of what might replace it.
Though overturning Smith has long been a goal for conservative Christians, most of the religious appeals pending at the Supreme Court today do not explicitly ask for that. That may partly be because, while the Supreme Court has declined to bury the precedent, it has already significantly weakened it.
Jim Campbell, chief legal counsel for ADF, said that the court has created “many opportunities to navigate Smith, without going through it.”
Campbell denied that religious advocates were disappointed by the lack of cases involving the free exercise clause in the Supreme Court term that ended in July.
“But I do hope that there are more religious liberty cases up there this term,” he said.
And if that doesn’t happen in coming months, Campbell expressed confidence it would eventually.
“There’s a lot more coming.”
