Reviewing the Religion Cases of the 2021-22 Supreme Court Term: Part Two

Editor’s Note: Yesterday, we ran David Ryden’s summary of three First Amendment cases the Supreme Court ruled on during the 2022-22 term. Today, David offers his thoughts about the meaning of these rulings and about religion in the law from a faith perspective.

Christians of varying ideological leanings are likely to process very differently the new judicial era of Supreme Court consensus around religion and the First Amendment. Notwithstanding such differences, three distinct and important shifts characterize this consensus that should give us a common foundation to inform our conversation. These developments also raise real concerns that should give pause to all Christians, whatever their partisan or political leanings. 

Religious Claimants: Moving from the Margins to the Mainstream. A seismic shift has occurred in a generation around who is claiming the protections of the First Amendment religion clauses. The major cases from the latter half of the last century invariably involved faith traditions at the margins of the American religious landscape. Did a Seventh-day Adventist lose unemployment compensation when she was fired for refusing to work on her (Saturday) sabbath? Could the Amish lawfully remove their children from public schools in contravention of compulsory education laws? Did Free Exercise include the Native American religious practice of ingesting peyote even though it was a banned substance under both federal and state law? What about the Jehovah’s Witness’s refusal to salute the flag? The Court was primarily concerned with protecting those practices of minority religious groups that diverged from the religious mainstream, thus clashing with laws and policies that implicitly reflected the tenets of culturally dominant mainstream Christianity.

In stark contrast, recent cases are focused on claims by religious traditions that are well within the religious mainstream. Hobby Lobby featured an evangelical Christian’s objection to the Affordable Care Act’s contraceptive mandate. In Masterpiece Cakeshop, it was a traditional Christian baker seeking an exemption from Colorado’s non-discrimination public accommodation laws. In Fulton v. Philadelphia, a Catholic family agency asserted the right to align its placement policies with the Church’s traditional views on sexual ethics. A handful of other cases involved Catholic or evangelical private schools’ claims to take part in publicly funded programs (Trinity Schools, Espinoza, Carson v. Makin). In other words, the posture of First Amendment litigation is no longer one of protecting peripheral faith traditions against an unfriendly culture influenced by dominant religious beliefs; rather it is to advance the interests of mainstream faiths against changing cultural norms.  

Opposing Trendlines: Religion in Law versus Religion in Culture. At the same time, religious claimants today hardly occupy the exalted cultural position that they did in the last century. A corollary to the shift noted above is that the pro-religion proclivities of the Supreme Court are taking hold in the midst of a precipitous decline in religiosity generally in America. The polling data is striking. According to Gallup, for the first time less than half of Americans claim membership in a church. Those with a formal faith affiliation or identity have markedly declined in the past decade while those with no religious beliefs or who refuse to affiliate with a religious tradition have increased significantly. Those who call themselves Christian have fallen a dozen points in the last decade, while the “nones” (atheists, agnostics, or those who otherwise eschew religious identity or affiliation) have risen by nine points. Similar declines have occurred in regular church attendance and participation in religious activities. In short, the winning streak that religious parties are enjoying in the courts is transpiring in the face of strong secular cultural headwinds.

The Nature of Religion: Public or Private? The third change has been in the justices’ understanding of what constitutes religious exercise. For the liberals on the bench, religion is a largely private affair, with attendant constitutional protections that are narrowly focused on traditional understandings of religious worship—singing hymns, reading scripture, prayer and other devotional practices. The conservative justices hold a much more expansive view of religion, one with a distinctly public dimension. Living out one’s faith extends far beyond worship to incorporate all facets of a religious adherent’s life. The conservative majority thus has been amenable to extending First Amendment constitutional protections to those whose religiously informed policies shape how they run their businesses (Hobby Lobby, Masterpiece Cakeshop), educate their children (Trinity, Espinoza, Carson), deliver services through their faith-based non-profits (Fulton), and the like. The pro-religion winning streak is very much grounded in a broader and more inclusive understanding of what falls under the umbrella of religious practice.

So what should we conclude from these observations? Contemporary Christians are neither like the marginalized religious groups that pursued their case in court in the mid-1950s, nor do they occupy the position of cultural dominance that they did at that time. The conservative Catholics or evangelical Protestants who show up as contestants in court are not minority faiths, but in fact are among the largest and most influential religious groups in America. At the same time, their relationship to the broader culture is increasingly tenuous, as more traditional religious values on the moral questions of the day are at odds with growing secular norms, particularly around lighting rod issues like sexuality and abortion.

I tend to think that more broadly cast religious liberty protections are appropriate (with the caveat that I am of an evangelical tradition where such views are regnant). At the same time, there are warnings for Christians who otherwise might tilt toward triumphalism as a result of their favorable treatment in court. Those are anchored in a commitment to principled pluralism, whereby people and institutions of diverse values commitments are free to operate in the public square. That notion of pluralism as a linchpin of a healthy democratic society is one where I am free to bring my faith-informed practices into the marketplace of ideas even while I honor competing belief systems (or none at all) and recognize the same freedom for them. For Christians, this should commit us to three paths.

Advocacy for religious liberty for all. The case for broad religious freedom has too often been undermined by a selective enthusiasm that depends upon whose rights are being protected. Religious conservatives tend to be fine with “rights for we but not for thee.” While aggressive in pursuing their own interests, they are silent on, or even oppositional toward, the efforts of non-Christian faiths or those with whom they differ theologically. Surveys indicate that conservative Christians tend to be less tolerant of those with differing religious commitments. A principled pluralism, to say nothing of the witness of the Church, demands a consistent ethic of support for the religious rights of Muslim refugees, religious prison inmates, and any others whose religion doesn’t align with one’s own.

Good Faith Pursuit of Compromise. No contemporary debate is more contentious than the legal and political conflict between religious liberty claims (mostly raised by religious traditionalists) and non-discrimination norms (driven largely by LGBT interests). That conflict is being waged as a zero-sum, win-at-all-costs contest, with neither side showing interest in finding some middle ground. A true test of one’s pluralist bona fides is whether they are willing, even in light of deeply anchored religious convictions and a friendly Supreme Court majority, to take a conciliatory approach with a diametrically opposed party. In this context, it would be agreeing to genuine civil rights protections for LGBT people at a minimum around housing and employment combined with broad carve-outs for religiously based exemptions. (For a model, take a look at the Fairness for All proposal at the federal level.)

Eschewing Reliance on the Courts. As more orthodox or traditional Christians’ views have increasingly collided with cultural values, the courts have become their rear-guard line of defense. Thus are they mirroring those on the opposite end of the ideological spectrum who have tended to pursue interests judicially that they couldn’t achieve via political means. Whatever the context, this is myopic and ill-suited for the exercise of principled pluralism. Courts tend to be win-lose and are poorly constituted for the give-and-take that allow for principled pluralism to play out. More importantly, the cause of the gospel can hardly be perpetuated through legal opinions. For Christians, prevailing in court may seem advantageous, but the successes are likely to prove ephemeral and will only impede Christians in the kingdom work of making the case for Christ through word and deed.