Religious Freedom Battle Is Far From Over: Here’s What to Look for in 2019

Arguments about religious freedom—who is entitled to it, and against whom their freedom should be protected—have in recent years come to the forefront in long-running disputes concerning social policy, morality, and civil rights.

During the Obama administration, religious organizations unhappy with laws and administrative regulations sought religious exemptions in increasing numbers. The Little Sisters of the Poor, the owners of the Hobby Lobby chain, various Christian colleges and universities, and wedding florists, photographers, and cake-bakers have all advanced such claims.

It’s clear that this issue is here to stay. The year that just ended saw the opening of new fronts in the legal battles over religious freedom. In 2018, the Supreme Court dodged one of the toughest issues—what to do when granting one party a religious exemption legitimizes discrimination against someone else. But as the year came to an end, the religious left began to leverage strategies that until now have largely been monopolized by the right. In 2019, we will see what further twists and turns this story takes.

Looking back: The Court punts on Masterpiece Cakeshop

Last year’s most prominent dispute was Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a baker, Jack Phillips, who refused on religious grounds to make a custom cake to celebrate a same-sex wedding. The Supreme Court heard oral arguments in December 2017 and issued its 7-2 ruling in June.

Disappointing partisans on both sides, the Court neither affirmed that antidiscrimination laws apply across the board, nor carved out space for merchants who believe that their faith conflicts with their legal obligations. Instead, Justice Anthony Kennedy’s majority opinion dodged the fundamental question, while invoking concepts that have long characterized his rulings in gay-rights cases. In 1995, Kennedy struck down an anti-gay amendment to Colorado’s constitution because he found impermissible “animus” in the process of its drafting. Likewise, in Masterpiece Cakeshop Kennedy opined that the state civil right commission’s judgment against Phillips should be overturned because several commissioners made comments that, the justice believed, demonstrated unacceptable bias against religious people.

Kennedy announced his retirement a few weeks after handing down the Court’s opinion in Masterpiece Cakeshop, leaving a bench sharply divided about religious exemptions to antidiscrimination laws. Four sets of justices filed concurring or dissenting opinions; only Chief Justice John Roberts abstained from writing or joining one of those separate writings.

As the hodgepodge of the Court’s response demonstrates, Masterpiece Cakeshop failed to present an ideal set of circumstances for sorting out the rights of religious objectors to antidiscrimination laws. But for Kennedy and other moderates, there was a silver lining: the difficult facts gave the Court a means to avoid the fundamental conflict in the case. In 2019, other disputes percolating up through the lower courts will present the clash between anti-gay religious beliefs and LGBTQ rights much more clearly. Two cases are about to be heard by state supreme courts: one concerning wedding flowers in Washington and another about custom wedding invitations in Arizona.

Is a cross always a cross? And other Establishment Clause matters

If the logistics of same-sex weddings have created a steady flow of cases invoking religious freedom claims, so have religious monuments on government land. In 2019, the Supreme Court will hear one of the latest such disputes, which concerns a giant Latin cross situated along a highway near the Maryland–D.C. border. The 40-foot Peace Cross, erected in 1925, is falling into disrepair, and when the local government set aside $100,000 for its renovation, the American Humanist Association sued, arguing that public funding for the memorial is unconstitutional because the memorial inherently endorses Christianity above other religions. Arguments are scheduled for late February, and at least one similar case, from Pensacola, Florida, is waiting in the wings.

Previous cases of this sort have received a mixed reception. In 2005, a divided court let stand a monument to the Ten Commandments on the grounds of the Texas State Capitol, while on the same day it struck down displays of the Commandments inside three Kentucky courthouses. Commentators on both the left and the right have criticized the Court’s messy record at resolving these disputes, with the late Justice Antonin Scalia famously comparing the dominant legal test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

Last year, that test “shuffled abroad” to Chicago, where the Seventh Circuit considered a challenge to the IRS’s longstanding practice of exempting clergy housing allowances from taxation. The Freedom from Religion Foundation won a major victory last year, when a federal judge in Wisconsin found the relevant portions of the tax code to be unconstitutional, but the three judges on the appellate panel did not tip their hand, although they showed few outward signs that they agreed.

The regulation at issue is more than sixty years old, enacted in the 1950s to ensure that ministers at churches who could not afford to provide them with housing could nevertheless benefit from the same tax breaks as ministers at wealthier, often more established churches. While the advocates from the Freedom from Religion Foundation characterized this as a benefit available only to clergymembers (and therefore an unconstitutional establishment of religion), the federal government defended the practice, saying that it’s of a piece with tax breaks for other categories of workers, including servicemembers, who are required to live at or near work for the convenience of their employers. A ruling is expected in 2019.

Exemptions on the left

By now, we have grown accustomed to a certain choreography to stories about religious exemptions and religious freedom. Some progressive government action is challenged by religious conservatives who believe that complying would violate their faith. Under the Religious Freedom Restoration Act (RFRA), courts ask whether the government is pursuing a legitimate objective and cannot do so in a less burdensome way. Either the conservative party prevails and claims constitutional vindication against governmental overreach, or it loses and faults the government for disrespecting religious citizens. Among last year’s examples: a case where a Christian family sued the local homeowners’ association for the right to erect a Nativity display featuring more than 200,000 lights and a live camel.

It appears that some advocates are turning this familiar pattern on its head. Last year, perhaps no dispute was more visible than the controversy about President Donald Trump’s travel ban. Advocates in Hawaii, Maryland, and elsewhere argued that when the President’s order is read in the context of his numerous anti-Muslim statements both before and after his election, the ban violates the Establishment Clause by deliberately disadvantaging Muslims attempting to enter the U.S.

After many twists and turns, the Supreme Court narrowly affirmed Trump’s ban, 5-4. It held that the final version of the proclamation is a valid exercise of presidential prerogatives in the immigration context. But Chief Justice Roberts’s majority opinion politely tweaked the president’s tail, and Justice Kennedy fretted that “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect.” Justice Sotomayor was more blunt. She referred back to Masterpiece Cakeshop, which the court had handed down just three weeks earlier. Whereas in that case, “a state civil rights commission was found to have acted without ‘the neutrality that the Free Exercise Clause requires’, the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance.”

In other cases, too, arguments about religious freedom are coming from unlikely quarters. In Arizona, a university teacher arrested for helping undocumented immigrants cross the southern border is citing RFRA in his defense, arguing that his faith mandates him to assist those in need. In Georgia, a group of Catholic activists who had forced their way onto a nuclear submarine base are offering the same defense, saying that Catholic doctrine opposes the use of nuclear weapons and that they were bound in faith to protest. (Disclosure: A faculty colleague of mine in Fordham University’s theology department testified for these defendants as an expert witness.)

What’s next?

So where is our national debate on religious freedom heading? It’s clear that there’s little consensus on how even to approach the toughest disputes, where one group’s defense of their civil rights necessarily infringes on another group’s dignity and equality. The Supreme Court—and U.S. society more broadly—will have to face the questions ducked in Masterpiece Cakeshop, or else be willing to settle for a level of uncertainty that serves no one. The Masterpiece-style cases making their way through the pipeline, along with new disputes about school prayer and the legal ramifications of the rapidly unfolding Catholic sexual abuse scandals, will all present opportunities for clarification.

But only time will tell how the Court—now joined by a Justice Kavanaugh who, for all the controversy surrounding his nomination, has only a thin and ambiguous record on cases involving religious freedom—will come out. And only time will reveal whether the rhetoric of religious freedom will remain a rallying cry on the right, or become one on the left. Already reports are suggesting that some moderate evangelical groups are preparing to follow in the footsteps of the Mormon church by supporting LGBTQ nondiscrimination laws in return for rigorous religious freedom protections.

Will 2019 be the year for a national settlement about religious freedom? Almost certainly not. Stay tuned for the next steps in this already complicated dance.