The U.S. Supreme Court term for 2019-2020 could be a “blockbuster” when it comes to religious freedom issues as the nation’s high court is set to take on a handful of cases and possibly more that deal with the First Amendment right, lawyers who work for a prominent religious freedom law firm believe.
“This is shaking up to be an exciting term for religious liberty,” Mark Rienzi, president of the religious freedom legal nonprofit Becket, told reporters on a press call Tuesday.
“I think this term will see the court have some opportunities to tighten up and improve its doctrine and in the process, perhaps, stem the tide of religious liberty cases it's been getting in recent years by giving some clear answers and some clear resolutions to some lingering controversies.”
The Supreme Court has agreed already to hear a handful of cases that carry religious freedom implications, while the court is set to consider other religious liberty petitions that Becket lawyers feel have a good shot at being taken up by the justices.
At this time, there are many legal questions seemingly left open by the Supreme Court’s narrow rulings in the last few years, and split circuit court decisions that resulted from the court’s sending of high-profile cases back to lower courts to be worked out.
“There's a possibility [the court] could grant cert [petitions] on some of these things late,” Rienzi explained. “So some of these issues might show up in the following term. But 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.”
“So I think it's likely to be a very big term,” he added. “My real prediction is big term, followed then by some small terms because if the court actually resolves these lingering issues that keep coming up to it, it can kind of clear the decks and give people some firm rules. And then it will not have to deal with these questions quite as often after this term or this term and next.”
Cases the Supreme Court has already agreed to hear
One issue that the Supreme Court has agreed to take on this upcoming term involves a trio of petitions looking for answers as to whether the Title VII law banning discrimination on the basis of sex also protects on the basis of gender identity and sexual orientation.
The more prominent of these three cases is Harris Funeral Homes v. EEOC, which stems from a Christian funeral home owner’s firing of a transgender employee who refused to wear clothing that corresponded with the employee’s birth sex.
The case marked one of the first legal actions the EEOC took on behalf of transgender individuals alleging sex discrimination against an employer.
In 2018, the Sixth Circuit Court of Appeals ruled unanimously that the funeral home owner, Tom Rost, discriminated against the employee.
As for Bostock v. Clayton County and Altitude Express v. Zarda, those cases were consolidated and deal with whether or not the 1964 Civil Rights Act protects from sexual orientation discrimination.
“And in all three cases, these involve employees who claim that they lost their job either because of their sexual orientation or their gender identity,” Becket Senior Counsel Luke Goodrich said on the press call. “And they filed suit under Title VII, which is the federal law that prohibits employment discrimination.”
Goodrich said that from 1979 until 2017, federal appeals courts that have addressed the question of Title VII all held that it doesn’t prohibit discrimination based on sexual orientation or gender identity.
He said that changed in 2017 when the Seventh Circuit Court of Appeals departed from the consensus, followed by the Second Circuit in the Altitude Express case.
“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.
“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 these religious organizations will be exposed to new lawsuits and potentially massive liability. This applies to churches, 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.”
Espinosa v. Montona Department of Revenue
Another case already approved to be heard before the Supreme Court this upcoming term is Espinosa v. Montona Department of Revenue, which deals with a state scholarship program that enables low-income families to send kids to private schools.
Under the Montana program, residents can donate up to $150 per year to a state scholarship program for children to attend nonreligious and religious private schools and in return, receive a dollar-for-dollar tax credit.
“But the issue, in this case, is a state constitutional amendment. Montana has a constitutional amendment in its state constitution that goes further than the federal Establishment Clause. It prohibits the government from making any direct or indirect appropriation of public funds ‘for any sectarian purpose,” Goodrich said.
“So the Montana Department of Revenue got this new scholarship program, looked at the program, looked at the state constitutional amendment, and said, ‘Hey, we can't under state law allow any of this scholarship money to be used at religious schools.’ So it issued a regulation, saying that scholarship money under these programs could only be used at secular schools.”
A lawsuit was filed on behalf of several low-income single mothers who chose to send their children to private religious schools.
Although a trial court ruled in favor of the mothers, the Montana Supreme Court reversed the decision because of the state’s amendment. But because the court did not have the capacity to change the statute to exempt religious schools, it scrapped the entire scholarship program to avoid such an entanglement.
Goodrich stated that the Espinoza case somewhat mirrors the Trinity Lutheran case of 2017 in which the U.S. Supreme Court ruled that the state of Missouri could not exclude a religious daycare center from a state program designed to assist in restoring daycare playgrounds.
“This could have a huge impact on Blaine amendments nationwide,” Goodrich said. “And this is not just about scholarships and vouchers for private schools. 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.”
Cases to be considered for review this term
According to Becket Senior Counsel Lori Windham, there are several petitions that are going to be considered by the Supreme Court through conferences in November and December for potential hearing in the spring of 2020.
“Given the number of these cases coming before the court and the court's interest and the circuit decisions, I would be surprised if the court did not take up one or more of these cases this term,” she said.
Fulton v. city of Philadelphia
One case that carries with it major religious freedom implications is that of Fulton v. city of Philadelphia, a case that stems from the city of Philadelphia’s decision in 2018 to ban Catholic Social Services from being able to provide foster care services because the organization won’t place children with same-sex couples due to religious convictions.
After the Third Circuit Court ruled against three individuals who served as foster parents with CSS, which is run by the Archdiocese of Philadelphia, Becket filed a petition to the Supreme Court seeking an emergency injunction against the city's actions.
Although the eight-member Supreme Court denied that petition, three justices issued a dissent.
“The court is aware of this issue and has shown some interest in it already,” Windham said.
“If the city succeeds, then Catholic Social Services will be excluded from providing foster care to children who were in Philadelphia's foster care system — 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.”
In July, Becket filed a cert petition with the Supreme Court. According to Windham, the Supreme Court extended the deadline for response to the petition from the city.
“So we're expecting to receive that response the first week in October and we're expecting that the Supreme Court will be considering this case sometime probably in November to see whether it's going to grant that petition,” she said.
Arlene’s Flowers v. Washington and Arlene's Flowers v. Ingersoll
Barronelle Stutzman, a Christian florist, was fined heavily by the state of Washington and sued after she refused to make floral arrangements for a same-sex wedding of one of her longtime customers.
Stutzman, represented by the Alliance Defending Freedom, has been through years of legal battles since then.
After the Washington Supreme Court ruled that her refusal to make floral arrangements violated state discrimination law, the U.S. Supreme Court last year sent her case back to the lower court to be heard again in light of its 2018 ruling in favor of a Colorado baker who refused to bake a cake for a same-sex wedding.
But the Washington Supreme Court this year again ruled that Stutzman violated state law by refusing to create a floral arrangement for the wedding. Another petition on behalf of Stutzman was filed to the U.S. Supreme Court.
“And so I expected that Supreme Court will be considering later this fall whether it's going to take up Arlene flower case,” Windham said.
There have been recent lower court rulings in favor of Christian business owners. Last week, the Arizona Supreme Court ruled in favor of wedding invitation designers who contended that a city nondiscrimination ordinance violated their First Amendment rights.
In August, the Eighth Circuit ruled that the Minnesota Human Rights Act barring discrimination on the basis of sexual orientation and gender identity violated the rights of a Christian couple who oversee a film company and who were told they must film same-sex weddings.
"So I think this [should] place some additional urgency on the court to step in and to resolve the dispute before we see more cases across the country and more courts coming to different opinions," Windham said.
Little Sisters of the Poor
In 2016, the Supreme Court sent the legal challenge by the Little Sisters of the Poor against the Obamacare contraceptive mandate back to the lower court to find a way to accommodate both the order of nuns’ religious freedom and government interest in providing contraception in health care plans.
But the Little Sisters of the Poor are back fighting against lawsuits states filed against the Trump administration’s religious conscience protections for faith-based organizations that have moral objections to providing contraception in health care plans.
“The contraceptive mandate dispute has not gone away,” Windham said.
“Pennsylvania and New Jersey were able to obtain a nationwide injunction against these new rules protecting religious objectors. That injunction was upheld by the Third Circuit.”
The Little Sisters of the Poor have houses in Pennsylvania and want to ensure they can maintain their protection from the Obamacare mandate, Windham said.
“The Little Sisters will be filing their cert petition soon,” Windham added. “And I expect that later this fall. We will be hearing from the court as to whether it's going to be taking up this issue.”
Ricks v. State of Idaho Contractors Board
George Ricks is a general contractor in Idaho who has been denied the license that he needs to work because he feels it would be a violation of his faith to provide a social security number as a term of employment.
Although he was willing to provide his birth certificate and other forms of identification, the state has declined to accept such alternate forms of identification.
“There is no Religious Freedom Restoration Act relief available for Mr. Ricks either in Idaho or at the federal level,” Windham detailed.
“And so this case really tees up squarely the question of what standards should apply. Does the Supreme Court want to maintain the Employment Division v. Smith standard, which is very difficult to prove for religious plaintiffs and really puts a heavy thumb on the scale of governments in religious freedom disputes?”
“Or does the Supreme Court want to, as four justices have suggested, revisit the Smith decision and reconsider the question that's posed in the Ricks petition?” she added.
According to Windham, the Supreme Court recently called for a response from the state to the Ricks' petition.
“So we will be seeing Idaho's response in October,” she explained. “I expect it in November, December, we will be learning whether the court is going to be taking up Mr. Rick's case.”