GetReligion
Saturday, March 29, 2025

Justice Samuel Alito

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Justice Amy Coney Barrett could soon prove crucial on legal fights over religious vs. LGBTQ rights 

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Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and – immediately – disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.

But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.

At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.

Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.

The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.

On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:

Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block

LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed


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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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SCOTUS debates heat up on death penalty, religious liberty: What word is missing here?

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To cut to the chase: I have just returned from a long eye exam (things are OK) and focusing on a computer screen is not going to be easy for several hours.

So let’s make this a quick post. OK?

What we have here is your basic Washington Post law-and-politics story, one running under the headline: “Last-minute execution decisions expose wide and bitter rift at Supreme Court.”

The death penalty is, of course, a hot-button issue linked to debates involving religion and morality, as well as political and legal realities. Here is the opening of this report:

The Supreme Court meets in private to decide last-minute pleas from death-row inmates to stop their executions, and what happens behind the maroon velvet curtains often stays behind the maroon velvet curtains.

But that changed Monday, with justices issuing a flurry of explanations and recriminations on cases decided weeks ago. The writings named names and exposed a bitter rift among members of the court on one of the most emotional and irreversible decisions they make.

Decisions on last-minute stays usually come with only a minimum of reasoning. But three justices issued a set-the-record-straight opinion that took aim at one of Justice Stephen G. Breyer’s dissents from a month ago. Breyer had said that the court’s conservatives deviated from “basic principles of fairness” in refusing to take more time to consider the plea of an Alabama murderer, Christopher Lee Price, who had asked to be executed by inhaling nitrogen gas rather than risk a “botched” lethal injection.

“There is nothing of substance to these assertions,” wrote Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch. They said that Breyer’s reasoning, which was joined by the court’s three other liberals, “does not withstand even minimal legal scrutiny.”

Now, since my eyes are under the weather, let’s let GetReligion readers look through this story through a media-criticism lens.

This story contains a lot of religion, since the court cases here involve Buddhist and Muslim prisoners and their First Amendment rights. Think religious liberty issues, without the “scare quotes.”


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NPR on evangelical culture wars: Open fights over sex and doctrine kick into high gear

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For a decade or more, your GetReligionistas have been urging journalists to (a) check and see if there are faith-based colleges (left or right) nearby and then (b) check and see if the leaders of these schools (think trustees or religious denominations) require students, faculty and staff to SIGN a doctrinal statement that frames all campus life.

In many cases, religious schools – especially Baptist and nondenominational evangelical schools – have long assumed that everyone can affirm "biblical authority" and/or "traditional Christian values" and that's that. There are lots of Protestants who, claiming a specific approach to the priesthood of every believer, simply do not like to write doctrines down. That would be a creed, you see. Think #Romeaphobia.

The problem is that we live in a legalistic age that demands precision and candor, especially about sex. And never forget that 1983 Bob Jones v. United States decision in which the U.S. Supreme Court ruled that, when conditions are right, it's fine for the government to get entangled in fights over what is good doctrine and what is bad doctrine.

The First Amendment ground started moving. This brings us to this solid National Public Radio report: "Christian Colleges Are Tangled In Their Own LGBT Policies."

The key to this piece is that it covers both the broad legal questions involved in these disputes and the growing doctrinal warfare inside the often vague world of evangelical culture. That second angle is one that GetReligionistas have long argued is worthy of mainstream-media attention, linked to the rise of a true evangelical left, defined in terms of doctrine, not politics. You can see these disputes breaking out all over the place, like Taylor University in Indiana and Abilene Christian University in West Texas.

Here's the NPR overture, which is long and solid:

Conservative Christian colleges, once relatively insulated from the culture war, are increasingly entangled in the same battles over LGBT rights and related social issues that have divided other institutions in America.


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Old-now-new question: Should churches and other religious non-profits be tax-exempt?

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Old-now-new question: Should churches and other religious non-profits be tax-exempt?

RACHAEL’S QUESTION:

Once in a while I’ll see someone comment online about how taxing churches could help with some of the nation’s financial problems. Would taxing churches help or hurt? How do other countries handle their churches and taxes?

THE RELIGION GUY’S ANSWER:

Governments always want more cash. However, a unanimous U.S. Supreme Court warned in 1819 (in McCulloch v. Maryland) that “the power to tax involves the power to destroy,” so policy-makers need to weigh societal benefits churches provide, often not available otherwise (more on this below).

Those are political and economic calculations. But there’s the far more fundamental issue of fairness.

The United States has always recognized the natural and inherent right to exemption for groups that operate on a not-for-profit basis, whether schools, hospitals, and secular charities or – treated equally – churches (or synagogues, mosques, ashrams) and religious charities and organizations.

However, a 2016 report from the U.S. Commission on Civil Rights stated that all sorts of religious exemptions should be designed “narrowly” so they do not “unduly burden non-discrimination laws and policies” for instance on gay matters. (Religious groups through history have hired employees who share their beliefs and moral tenets.) Weeks after that, a petition from Christian conservatives declared that tactics such as removal of tax exemption due to gay and transgender policies “threaten basic freedoms of religion, conscience, speech, and association.”

One reason for such concerns was the oral arguments prior to the Supreme Court’s Obergefell v. Hodges ruling that legalized same-sex marriage nationwide.


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