GetReligion
Wednesday, April 02, 2025

Douglas Laycock

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Stay tuned: Ceasefire in battles between LGBTQ rights and religious liberty?

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Stay tuned: Ceasefire in battles between LGBTQ rights and religious liberty?

No doubt about it, someone will have to negotiate a ceasefire someday between the Sexual Revolution and traditional religious believers, said Justice Anthony Kennedy, just before he left the U.S. Supreme Court.

America now recognizes that "gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," he wrote, in the 2018 Masterpiece Cakeshop decision. "The laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

Kennedy then punted, adding: "The outcome of cases like this in other circumstances must await further elaboration in the courts."

The high court addressed one set of those circumstance this week in its 6-3 ruling (.pdf here) that employers who fire LGBTQ workers violate Title VII of the Civil Rights Act, which banned discrimination based on race, color, religion, sex or national origin.

Once again, the court said religious liberty questions will have to wait. Thus, the First Amendment's declaration that government "shall make no law … prohibiting the free exercise of religion" remains one of the most volatile flashpoints in American life, law and politics.

Writing for the majority, Justice Neil Gorsuch – President Donald Trump's first high-court nominee – expressed concern for "preserving the promise of the free exercise of religion enshrined in our Constitution." He noted that the Religious Freedom Restoration Act of 1993 "operates as a kind of super statute, displacing the normal operation of other federal laws." Also, a 1972 amendment to Title VII added a strong religious employer exemption that allows faith groups to build institutions that defend their doctrines and traditions.

Nevertheless, wrote Gorsuch, how these various legal "doctrines protecting religious liberty interact with Title VII are questions for future cases too."

In a minority opinion, Justice Samuel Alito predicted fights may continue over the right of religious schools to hire staff that affirm the doctrines that define these institutions – even after the court's 9-0 ruling backing "ministerial exemptions" in the Hosanna-Tabor Evangelical Lutheran Church and School case in 2012.


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New podcast: What's next in terms of Sexual Revolution vs. religious liberty news?

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Decisions by the U.S. Supreme Court usually make headlines, especially when the court is bitterly divided. Few things cause as much chaos in American life than 5-4 decisions from on high.

Meanwhile, 9-0 decisions — which are actually quite common — often receive little attention. They are, however, extremely important because they display a unity on the high court that should, repeat “should,” be hard to shatter.

I bring this up, of course, because of the 6-3 SCOTUS ruling redefining the word “sex” in Title VII of the Civil Rights Act of 1964. In the wake of that historic victory for LGBTQ activists, reporters who cover legal issues, especially church-state conflicts, have to start thinking: Where is this story going now?

That’s precisely what “Crossroads” host Todd Wilken and I talked about in this week’s podcast (click here to tune that in). Journalists can expect clashes sooner, rather than later, when it comes to LGBTQ Americans presenting evidence that they were fired, or were not given a fair chance to be hired, at businesses operated by traditional Christians, Jews, Muslims, etc.

One could start a timer, methinks, to measure how long it will be until the first story of this kind breaks involving Hobby Lobby or Chick-fil-A. The more important story, however, will be how this new legislation passed by the Supreme Court will affect traditional religious believers across the nation who own and operate small businesses. Journalists looking for stories on the cultural left will want to visit businesses led by religious believers who stress that they have had no problems with their employees.

However, let’s go back to that other religious question: What is the next shoe that will drop?

With that in mind, reporters may want to ponder the implications of a 9-0 church-state decision at the Supreme Court in 2012 — which isn’t that long ago, in legal terms. I am referring to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That’s the case that strengthened the concept of a “ministerial exception” that gives doctrinally defined religious institutions great freedom in the hiring and firing of employees. The bottom line: The state isn’t supposed to become entangled in personnel decisions that involve doctrine.

Why does that matter right now? As I argued this week (“ 'But Gorsuch...' crashes at Supreme Court: Now watch for 'Utah' references in news reports“), debates about Title VII religious exemptions are looming in the near future. At that point, all roads lead to the 9-0 ruling on Hosanna-Tabor.

The question legal minds are asking: Are we about to see a drama with two acts?


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Journalists should be gearing up for big 'culture war' cases at U.S. Supreme Court

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The COVID-19 emergency shouldn’t divert the media from getting prepared for an unusual pileup of big “culture war” news that will break at the U.S. Supreme Court during the weeks through early July.

Pending decisions the media will need to interpret involve abortion, religious conscience claims, gay and transgender rights, taxpayer aid for students at religious school and (yet again) religious objections to mandatory birth-control coverage under Obamacare. Next term, the court will take up the direct conflict between LGBTQ advocacy and religious conscience, an uber-important problem.

These cases will show us how the newest justices, Neil Gorsuch (age 52, seated 2017) and Brett Kavanaugh (age 55, seated 2018), will be reshaping court edicts on religio-cultural disputes.

Here are the imminent decisions to be ready for.

Espinoza v. Montana (docket #18-1195) — This regards the venerable “Blaine amendments” in many state constitutions that forbid religion-related aid by taxpayers. Does a state violate the U.S. Constitution’s “equal protection” clause if it denies generally available public scholarships to students who attend religious schools?

Little Sisters of the Poor v. Pennsylvania, incorporating Trump v. Pennsylvania (19-431) — Last week, the court heard arguments in this case involving claims of religious rights vs. women’s rights. Did a Trump administration setup properly exempt religious objectors from the Obamacare mandate that requires employers to arrange birth-control coverage?

June Medical Services v. Russo (18-1323) — Louisiana requires abortion doctors to have admitting privileges at nearby hospitals, which pro-choice advocates say hobbles women’s access to abortion. In 2016, a Supreme Court with different membership threw out such a regulation in Texas

Our Lady of Guadalupe School v. Morrissey-Berru, incorporating St. James School v. Biel (docket # 19-267) — The court heard the argument on this Monday via a COVID-era telephone conference. This Catholic school case from California poses whether under the Constitution’s religious freedom clause schools and agencies can discriminate in hiring workers who are not officially ordained “ministers” but may carry out some religious functions. In a similar Lutheran case in 2012, the high court said yes.


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U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

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“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.

Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.

Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.

Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.

Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”

Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.


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When First Amendment conflicts erupt at U.S. Supreme Court, it's time to ask WWDD?

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When First Amendment conflicts erupt at U.S. Supreme Court, it's time to ask WWDD?

Over a three-day period, 47 “friend of the court” briefs suddenly clogged the inbox at the U.S. Supreme Court regarding the most important religious liberty case of this term – if not of the coming decade. This is a crucial First Amendment showdown.

Almost all these briefs opposed Colorado’s use of an anti-discrimination law against Masterpiece Cakeshop for refusing to provide the cake for a same-sex wedding.

The immediate issue is the fate of certain religious bakers, florists, photographers, Orthodox Jewish catering halls and the like. In a parallel case, Oregon fined a bakery $135,000, demonstrating government’s power to penalize dissenters or put them out of business. Beyond that lie important rights claims by conscientious objectors that the Supreme Court did not address when it legalized gay marriages nationwide in 2015 (.pdf here).

The Cakeshop’s pleas for freedom of religion, conscience, and expression are backed in briefs from the Trump Administration, 11 Republican U.S. Senators and 75 House members, 20 of the 50 U.S. states led by Texas, a host of social conservative and “parachurch” agencies, and America’s two largest religious bodies (Catholic Church, Southern Baptist Convention).

Yet to be heard from are “mainline” Protestant and non-Orthodox Jewish groups that support the gay cause.

This past week the court received briefs from the American Civil Liberties Union (.pdf here) on behalf of the gay couple and from Colorado officials (.pdf here). Repeating past contentions, the briefs contend that religious liberty claims cannot justify exemptions from anti-discrimination laws that are “neutral” and “generally applicable,” whether religious or secular in motivation. As Colorado sees things, the Constitution offers no support for a business “to treat a class of people as inferior simply because of who they are.”

Whenever news about the First Amendment erupts, The Religion Guy first asks WWDD? That is, What Will Douglas Do? – referring to Douglas Laycock, distinguished professor of law at the University of Virginia and a prime source on our beat.


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Christian legal organizations get the editorial shaft from The Deseret News

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When I saw the headline “Serving God by suing others: Inside the Christian conservative legal movement,” I knew the ensuing news article meant trouble.

Would the Deseret News (which produced the above piece) have referred to the Americans for Civil Liberties Union in such a demeaning fashion? Or the Freedom From Religion Foundation?

Both of those organizations spend much of their time suing other entities over religion.

So why all the love for the conservatives? We begin with this:

SALT LAKE CITY – Roger Gannam cites the Bible to define his company's mission. That wouldn't be notable if he worked at a church or food kitchen, somewhere known for sharing the gospel with the world. But Gannam works at a law firm, suing others and representing those who have been sued.
His employer, Liberty Counsel, advocates for conservative Christian interests in cases related to the sanctity of life, family values and religious liberty, presenting the court system as a way to live out Jesus' "Great Commission."…
Liberty Counsel is part of the Christian legal movement, a collection of advocacy groups working in the legal, public policy and public relations arenas to advance and protect conservative Christian moral values. Together, these firms have turned the courts into key battlefields in the culture wars.

Actually, the courts have been culture wars battlefields for decades. See Griswold v. Connecticut, Roe v. Wade and Obergefell v. Hodges.

The power of this movement will be on display this fall, when Masterpiece Cakeshop v. Colorado Civil Rights Commission is argued before the Supreme Court.


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Will the waning Barack Obama administration rewrite religious hiring rules?

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Will the waning Barack Obama administration rewrite religious hiring rules?

Church-and-state disputes are a hot beat and it's getting hotter all the time.

We have religious objections over the government’s transgender bid to control school toilets and locker rooms nationwide, the Supreme Court’s bounce back of the Little Sisters’ “Obamacare” contraception case, states’ debates over whether merchants can decline gay wedding services on religious grounds, and much else.

Media coverage to date shows little interest in how church-state policy might be affected by a President Clinton, or a President Trump, or the jurists on Donald Trump’s recent Supreme Court list, or a Justice Merrick Garland. Will this be raised at a big June 9-11 “religious right” confab in D.C.? Speakers will include Trump and former challengers Cruz, Fiorina, Huckabee, Kasich, Paul, and Rubio, plus House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

Meanwhile, interest groups are ardently lobbying the Obama Administration to change religious hiring policies during its waning days. At issue is application of the federal Religious Freedom Restoration Act (RFRA) under the 2007 “World Vision memorandum” (click for .pdf) from the Bush Administration’s Department of Justice.

World Vision, a major evangelical organization, had landed a $1.5 million grant to provide mentoring for at-risk youths. The memo ruled that it’s legal for such religious agencies fulfilling service programs through federal grants to consider religious faith in their hiring. The Obama White House has thus far resisted pressure to abolish that policy, most recently in a Feb. 22 letter from ranking Democrats in the U.S. House.


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NPR files a toothless story on fired, pregnant professor suing Christian college

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For those of you who’ve never signed up to work at a religious school, such entities make it very plain before you work there that certain behavior is expected.

We are talking, of course, about ink-on-paper doctrinal and lifestyle covenants. Whether it’s drinking alcohol, smoking, drinking coffee (in the case of Mormons) or having sex outside of marriage, certain expectations are made very clear to you before you sign a contract to work in this voluntary association, which is what a private school is, of course.

NPR just did a story on one college professor who didn’t get that message.

A former professor at Northwest Christian University in Oregon is suing the school for allegedly firing her for being pregnant and unmarried, violating the faith-based values of the institution. She says it's discrimination.
MELISSA BLOCK, HOST: Now a story about a professor in Oregon who says when she told her employer she was pregnant, she got a pink slip instead of congratulations. That's because she worked at a Christian school and because she's not married. NPR's Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: Coty Richardson spent four years teaching exercise science at Northwest Christian University. She says she loved in the small classes at the school in Eugene, Ore., and she loved its values and caring environment…
JOHNSON: But Richardson says that tolerance was put to the test earlier this summer when she told her boss she was pregnant.


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Coverage of the religion angle to Supreme Court decision: Fairly predictable

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OK, so you're a religion reporter, and it's Friday morning the 26th, and you're glued to your desk awaiting the U.S. Supreme Court's decision on gay marriage.

Word starts to seep out at 11 a.m. Eastern.

Since many of the justices took special care to mention the concerns of religious groups, it's your job to do the sidebar. What do you write?

As I scanned various papers large and small, ranging from the Jackson (Miss.) Clarion-Ledger to Utah's Deseret News, it seemed that most punted by simply getting reacts from local religious and political leaders. Or they took the compendium from Religion News Service. I've had to write zillions of similar react pieces and it's harder than it looks, so I'm not knocking these folks.

But I am going to credit the outlets that went the extra mile.

The Wall Street Journal didn't just react to the ruling but looked ahead to coming battles on religious freedom. It had some of the best quotes I saw all day, including one from Richard Land, the former culture wars czar for the Southern Baptists who's been a bit of a pariah in recent years after he was edged out of his position in 2012. However, the Journal remembered Land and gave him a call:


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