In recent years, the Supreme Court has shown a greater willingness to protect the right to religious freedom of the First Amendment from state and local regulations.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, the court ruled Colorado had shown animus towards religion by punishing a baker for refusing to bake a cake for a same-sex wedding.
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And this year, ahead of the Fulton v Philadelphia ruling, the court overturned two state responses to the COVID-19 pandemic that restricted gatherings in churches and synagogues. In cases involving California and New York, Court 5-4 said that the rules violated the First Amendment because they did not apply to secular activities alike.
Lori Windham, the Washington, DC attorney who represented the Fulton case in court, said the decision had given religious departments an additional level of protection.
“We already knew from the Masterpiece Cakeshop case that government discrimination was against the free exercise clause,” said Windham, an Abilene Christian University graduate attending Fairfax Church of Christ in Virginia. “We now know from the COVID cases that you will be protected if you fail to regulate similar secular activities.
“And we know from Fulton that you are protected when you have plenty of discretion to decide how to apply the law. “Between those three precedents, this has really increased the protection of religious freedom.”
These victories limit a number of confusing and often contradicting cases that have left legal scholars and religious rights advocates confused:
• Reynolds versus the United States (1889). The Supreme Court first interpreted the free exercise clause of the First Amendment 130 years ago, stating that federal law could prohibit bigamy, even in Utah, where Latter-day Saints’ Church of Jesus Christ viewed the practice as a matter of doctrine. There the court made a distinction between beliefs that could not be restricted by the state and actions that were based on this belief and were apparently subject to blanket legal restrictions.
• Sherbert v. Verner (1963). Reynolds was changed in a case where a Seventh-day Adventist was fired for refusing to work on Sundays. The court said the state could not refuse unemployment benefits to the woman who acted on her religious beliefs unless it could show that it had an “overriding government interest” and that the regime was “tightly tailored” to that interest to reach. This legal concept is known as “strict examination”.
• Oregon Labor Department v Smith (1992). The court reduced Sherbert’s protection and found that two Oregon Native Americans who were fired for ingesting peyote were not eligible for unemployment benefits – despite using the illegal and hallucinogenic plant as part of their church membership. In a letter for the majority, the late Judge Antonin Scalia said that religious groups must comply with a valid law that is equally neutral to religious and non-religious. Otherwise “the prospect of constitutionally required exemptions from civil duties of every imaginable kind would open up”.
• Law to Restore Religious Freedom (1993). A bipartisan congress responded to the Smith decision by passing the RFRA, which now requires that any federal law materially violating freedom of worship meet the “rigorous test” standard.
• Burwell vs. Hobby Lobby Stores (2014). In interpreting the RFRA, the court found that a privately owned company could not be compelled to offer what it considered to be an abortion in violation of sincere religious beliefs. But the court later ruled that the law only protects organizations from federal action, leaving open how much protection religious nonprofits and others have from regulation by state and local governments.
KENNETH PYBUS is Associate Professor and Chair of Journalism and Mass Communication at Abilene Christian University in Texas and an attorney for the First Amendment.
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