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WASHINGTON – As religious freedom emerges as a major theme at the Supreme Court this year, some court watchers predict a series of opinions involving COVID-19 restrictions have put that issue on a collision course with gay rights.
In nine cases since November, the high court has sided with churches and synagogues that sued over coronavirus regulations limiting the number of worshippers who can attend services. The disputes have put religious freedom center stage and may provide clues about how the justices will handle a blockbuster case involving same-sex couples.
The Supreme Court is set to rule this year on a major case questioning whether Philadelphia can stop working with a Catholic charity that declined to screen same-sex couples as foster parents, Fulton v. Philadelphia. Some legal scholars said the COVID-19 disputes show the Catholic group may have momentum on its side.
“This voting lineup makes clear that Fulton is going to be reversed,” predicted Douglas Laycock, a University of Virginia law professor and expert on religious liberty. “At least five, and maybe all six, of the conservatives will protect the Catholic Church from having to place children with same-sex couples or else losing its foster-care mission entirely.”
Though not everyone has signed on to that assessment – including the organizations that support Philadelphia – there is agreement the court’s new conservative 6-3 majority has already looked favorably on religious freedom claims and will probably continue to do so.
Even before Associate Justice Amy Coney Barrett took her seat on the court in October, adding another conservative voice to the bench, the justices have looked kindly on religion in high-profile cases. The court allowed taxpayer money to be directed to religious entities in some situations, exempted employers with religious objections from requirements that they provide health insurance coverage for contraceptives and let a massive Latin cross stay on government land within a few minutes’ drive from the nation’s capital.
More recently, the court overturned coronavirus regulations that curtail indoor religious services because they included exceptions for secular businesses, such as retail stores and hair salons. Those decisions have come through the court’s so-called shadow docket, meaning they have been decided quickly – without oral argument – and often without an opinion from the court.
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Those cases have represented a huge win for evangelical Christian congregations and other religious groups who say the government shouldn’t be able to force them to take positions that conflict with their belief.
“People felt more excited than usual because there was nothing to fear,” Adelheid Waumboldt, a spokeswoman and parishioner at Harvest Rock Church in California, said as she described services after the church won a case at the Supreme Court last month. “There was no fear of being arrested or fear of persecution.”
Same-sex foster parents
Fatma Marouf and Bryn Esplin sat in stunned silence for a few seconds when the person on the other end of the line told them that if they wanted to qualify as foster parents, their home would need to “mirror the Holy Family.” For a second, they weren’t completely sure what that meant. It became clear soon enough.
Marouf, director of the Immigrant Rights Clinic at Texas A&M School of Law, works professionally with Catholic Charities Fort Worth and had toured the center where the organization helps care for unaccompanied refugee children for the federal government. In 2017, she and Esplin, a bioethics professor at the University of North Texas, decided they wanted to help in a more direct way.
Catholic Charities was the only foster agency available for the migrant children.
“I thought, for sure, this can’t be legal,” Marouf said. “This is a federal program using taxpayer funds.”
The prohibition, Esplin said, not only shrinks the pool of potential foster parents, it also assumes there are no LBGT children who might benefit from same-sex parents.
One of the questions raised by the Fulton case is whether government contractors, such as the Catholic foster care agency, may object to anti-discrimination requirements – after all, they work for the government. Another question is whether the government must offer exceptions to religious groups if they offer them to secular organizations.
That second question, several observers said, is where the COVID-19 cases may become relevant.
The foster agency case pits Philadelphia’s position that it can prohibit same-sex discrimination by its contractors against Catholic Social Services, which asserts it cannot screen same-sex couples to be foster parents because it opposes gay marriage on religious grounds. The court heard arguments in November.
Part of the issue in the Philadelphia dispute is what test the court will use to determine whether a law violates the First Amendment right to free exercise of religion. The outcome could turn on whether the court finds that any secular exceptions to a law – say, allowing people into a hardware store during the pandemic – means there must be exemptions for religious activity, such as attending Sunday morning services.
“The opinions we’re seeing and the votes we’re seeing in the shadow docket coronavirus and church closing cases suggest that in the Fulton case, the court is going to come out in favor of the Catholic adoption agency,” said Richard Garnett, director of the University of Notre Dame law school program on church, state and society. “They do involve a similar question of, ‘Once you open the door, then what?’”
Attorneys for the Catholic charity said the city’s other foster care agencies benefit from exemptions to the city’s nondiscrimination rules. They might not place a disabled child with a family if the would-be parents don’t have the means to care for her. If the city allows that, attorneys said, it must allow religious exemptions.
Others said that’s not the same as Catholic Social Services declining all same-sex couples.
Patrick Elliott, senior counsel at the Freedom From Religion Foundation, conceded that the Supreme Court has been willing to give “special preferences to religion even when that causes harm to third parties.” He also agreed that the COVID-19 cases have been a part of that trend under the court’s more conservative majority.
But Elliott disputed that the church cases have anything to do with Fulton.
“Philadelphia’s rules requiring nondiscrimination are altogether different,” he said. “CSS has a complete ban against same-sex couples providing a loving home for foster care children. Philadelphia has neutral rules that prohibit that type of discrimination in the foster care certification process.”
The Supreme Court ruled in a 1990 decision that a government can impose restrictions that affect a religious entity as long as they are applied equally to religious and secular activities. A city can impose a 30 mph speed limit, for instance, and if someone claims his religion requires him to drive 60 mph, too bad. The claim gets tossed.
Some conservatives want to overturn the precedent – which, ironically, was written by Associate Justice Antonin Scalia, a stalwart conservative in his time on the bench. Critics said the opinion, Employment Division v. Smith, reduced religious protections provided by the First Amendment.
Three years after Smith, in another groundbreaking case, the court invalidated a Florida city’s attempt to stop a church from performing animal sacrifices. The justices found that laws that are not applied equally must receive far more scrutiny and that secular exceptions to a law restricting religion signal that the higher scrutiny should apply.
In other words, if a city tried to ban animal killings in a church because of objections from neighbors but exempted the slaughterhouse or the killing of pests from that rule, it would probably be in for a much tougher fight in federal courts.
Snap forward 30 years to a world besieged by a pandemic that has killed more than 530,000 people in the USA and that sent officials scrambling to pass restrictions on gatherings. Many of those regulations affected churches, and many included exemptions for “essential” secular activities.
In one of the first such cases, the justices ruled in July that Nevada could impose tighter crowd restrictions on churches than casinos. In the 5-4 ruling, Chief Justice John Roberts joined the court’s four liberals. The court did not explain its order.
In an unsigned opinion, the justices noted New York allowed exceptions to the COVID-19 rules for acupuncture clinics, garages and campgrounds. They applied the tougher standard and ruled against New York. In subsequent disputes, including one involving five California churches that the court decided last month, the conservatives again noted exemptions to the COVID-19 restrictions for retail stores and hairstylists and blocked the rules.
Liberal justices have countered the exemptions are not similar – a church, where people may sit together for an hourlong service, is more like a theater than a grocery store, they said. Entities that health officials describe as similar to churches, such as movie theaters, have generally been subject to the same COVID-19 restrictions.
Frank Ravitch, a Michigan State University law professor who studies law and religion, said the Supreme Court majority’s comparisons of churches to grocery and other retail businesses “are ridiculous and trample on public safety measures created by state health officials and trample on common sense, in my view.”
‘Actual proof of harm’
Lori Windham, an attorney who represents Catholic Social Services in the Fulton litigation, said the COVID-19 cases have demonstrated that when a government begins making exceptions for secular activity, it’s going to have to find a “really good reason” for why it doesn’t make similar accommodations for religious organizations or activities. Windham is a senior counsel at Becket, a nonprofit law firm that represents litigants fighting for religious freedom.
“The second part of that is the COVID cases show that when the government is restricting religious exercise, it needs to show actual proof of harm,” she said.
In the COVID-19 cases, Windham said, local governments haven’t proved religious services are more dangerous than gyms or big box stores. In the Fulton case, no same-sex family was turned away by the Catholic charity, because none came to the group looking for a foster child in the first place.
Instead, those families went elsewhere.