The Supreme Court Enters A Classic Culture-Wars Clash
(ANALYSIS) A significant case the U.S. Supreme Court will hear on appeal Nov. 3 evokes major elements of this century’s culture wars. This public policy clash pits claims based upon venerable religious rights against modern-day LGBT rights. It involves money and taxes, the Trump Administration, politicians of both parties, the Catholic Church, other faiths, legal theorists and an array of nationally prominent organizations.
At issue in St. Mary Catholic Parish v. Roy is Colorado’s program to pay for children’s enrollment in preschools, whether public, private, or religious. Under state anti-discrimination law, participating preschools are required to offer “equal opportunity” admissions regardless of parents’ “sexual orientation” or “gender identity,” along with other factors. In this case St. Mary’s, a second parish, and a Catholic couple are contending that even though a preschool denies admission over those two points, traditional church beliefs should be accommodated and it should be allowed to participate with state funding.
In a sharp partisan division, the Catholics are supported by the U.S. Department of Justice, and “friend of the court” briefs from 21 Republican-led states and 43 Republicans in Congress. Religious support comes from, among others, the United States Conference of Catholic Bishops, Southern Baptist Convention, Church of Jesus Christ of Latter-day Saints, Lutheran Church-Missouri Synod, Union of Orthodox Jewish Congregations, National Association of Evangelicals, and a broad swath of major pro-family and evangelical organizations representing lawyers, women, youth work, colleges and varied ministries.
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Colorado’s policy is favored in briefs from 18 Democratic-led states and the District of Columbia, and 179 Democratic members of Congress. Allied with them are many legal scholars, LGBT advocates, teachers’ unions, the NAACP, National Women’s Law Center, American Civil Liberties Union, Americans United for Separation of Church and State, American Atheists Inc., Interfaith Alliance and, of particular interest, the large Evangelical Lutheran Church in America.
Hanging over this, as with most religious freedom debates, is the Supreme Court’s 1990 Employment Division v. Smith decision, written by Justice Antonin Scalia. Kelsey Dallas, managing editor of the invaluable Scotusblog.com, offers a good analysis of that factor. (Dallas, who has a Yale master’s degree in religion, is well-known on our beat from 11 years with Utah’s Deseret News). She says Smith sent “shockwaves” across a wide range of U.S. religious groups but there’s no sign the Supreme Court will reconsider this precedent.
Prior to Smith, the Supreme Court said government needed a “compelling interest” to justify a law that impinged on religion, and that a law must be the “least restrictive means” to achieve a desired goal. Scalia thought that language almost always “required religious exemptions from civic obligations,” which invited “anarchy.” Instead, he ruled that the Constitution’s “free exercise” of religion guarantee does not forbid “neutral, generally applicable” laws that do not target a particular faith, and he eliminated the need to show a “compelling interest.”
Colorado’s defense relies upon Smith. Unlike some other states, it encourages church-run preschools to receive aid even if they conduct religious education. But they must meet “the same equal-opportunity requirements that apply to all publicly funded preschools.” As Colorado applies Smith, “government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.”
That view is expressed in a brief from 11 groups including Americans United, the A.C.L.U., and the E.L.C.A. Lutherans. They say the issue here is whether the Constitution entitles churches “to an exemption from the equal-opportunity requirements,” and assert that with St. Mary’s “expansive view” of rights “the answer should be no.” They say that under Smith, “strict scrutiny” of government actions that “incidentally burden religion” is not necessary with “neutral and generally applicable laws.”
Compared with the Smith complexities, the Catholic bishops’ stance is straightforward. They say certain preschools were excluded from Colorado’s program “solely because of their adherence to Catholic doctrine,” whereas Supreme Court precedent should be understood to forbid states from “rebranding sincerely-held religious beliefs as ‘discrimination’ in their efforts to impose a different, state-preferred orthodoxy,” in this case concepts on “gender and human sexuality.” There’s similar thinking in the briefs filed by tradition-minded Protestants, Latter-day Saints, and Jews.
Further, the bishops warn that a Supreme Court loss would “embolden” other states and cities to enact “ostensibly neutral statutes” that in practice “discriminate against religious adherents’ rights.” The result would be “immense” damage to the provision of public services worth “billions of dollars” by “faith-based” groups that partner with government.
When major religion cases arise, this writer wonders immediately W.W.D.D., that is, what will Douglas Laycock do? Laycock, now retired as a professor at Chicago, Texas, Michigan and Virginia universities, is a distinguished proponent of both church-state separation and of religious “free exercise.”
With the St. Mary case, he joins a brief with Thomas Berg of the University of St. Thomas, Christopher Lund of Wayne State University and the Christian Legal Society.
They contend that Colorado clearly violated the Constitution and, properly understood, Smith doctrine does not erase the Catholics’ liberty claim.
“Protection from religiously burdensome funding conditions is essential to religious freedom in the modern state,” they state.
The Constitution ensures “that individuals and groups can make choices about religious matters without governmental pressure either to practice religion or to forego practicing it.” Thus, government “neutrality” requires special diligence regarding “conditions on government funding that conflict with religious practice.”
Linda Greenhouse, the longtime New York Times Supreme Court reporter, is an influential foe of the Roberts Court’s conservative majority on religion and many other matters. Her glum expectation is that the Catholics will win their appeal because a majority of the justices are “primed to take an apocalyptic view of any seeming incursion on the interests of religious believers.”
Richard N. Ostling was a longtime religion writer with The Associated Press and with Time magazine, where he produced 23 cover stories, as well as a Time senior correspondent providing field reportage for dozens of major articles. He is a recipient of the Religion News Association's Lifetime Achievement Award. He has interviewed such personalities as Billy Graham, the Dalai Lama, Mother Teresa and Joseph Cardinal Ratzinger (later Pope Benedict XVI); ranking rabbis and Muslim leaders; and authorities on other faiths; as well as numerous ordinary believers. He writes a bi-weekly column for Religion Unplugged.