Justice Neil Gorsuch

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Podcast: Can journalists imagine 'mirror' cases in which 303 Creative protects liberals?

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Podcast: Can journalists imagine 'mirror' cases in which 303 Creative protects liberals?

If you follow Robert P. George in social media, you probably know several things about this legal scholar.

(1) He is a political philosopher and professor of jurisprudence at Princeton University.

(2) George is a doctrinally conservative Roman Catholic.

(3) He is a skilled Americana musician (think folk, gospel and bluegrass) who plays the banjo and a 12-fret acoustic guitar (I’m a big fan of the latter).

(4) In the public square, he is relentlessly irenic, seeking ways to view issues through the lens of those with whom he disagrees. This approach has been demonstrated during years of joyful and informative pro-tolerance dialogues with his close friend Cornel West, a liberal’s liberal known for decades of provocative classroom work at Princeton, Harvard and Union Seminary.

From a GetReligion point of view, it’s also important that — based at Princeton — George lives right on the edge of what could be called the Archdiocese of The New York Times and he pays close attention to mainstream news coverage of religion and public life.

This is why George played a key role in this week’s “Crossroads” podcast (click here to tune that in), which was a follow-up to my recent post with this headline: “After 303 Creative: Can readers find Twitter voices (hello David French) that help us think?”

After the latest wave of U.S. Supreme Court decisions, George posted a Mirror of Justice commentary in which he noted that Times editors seemed remarkable unaware of the actual contents of the majority opinions. The headline on the Gray Lady’s initial 303 Creative story was, in GetReligion terms, a classic: “Web Designer Wins Right to Turn Away Gay People.”

The problem was that Justice Neil Gorsuch — author of the court’s landmark Bostock decision (.pdf here) backing trans rights — said the opposite of that in his 303 Creative majority opinion (.pdf here).


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What role will religion play in current U.S. Supreme Court nomination intrigue?

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What role will religion play in current U.S. Supreme Court nomination intrigue?

When President Biden soon chooses a successor to Supreme Court Justice Stephen Breyer, journalists will need to keep in mind highly contentious religious issues, not just on matters like abortion but over how much to limit First Amendment claims of religious freedom, as in same-sex disputes, and where to draw lines on church-state separation.

Liberal, secularist and separationist voices are quick out of the gate with warnings to Biden about the Court's 6-3 conservative majority. Americans United for Separation of Church and State wants a new justice who'll be "a bulwark against the court's ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us." This lobby asserts that "our democracy depends on it."

A must-read from the cry-of-alarm forces is the analysis of numerous recent Supreme Court religion rulings from Ian Millhiser — Vox.com's specialist covering law and "the decline of liberal democracy." He asserts that a religion "revolution" is the "highest priority" of the Court's six Republican appointees, who are "rapidly changing the rules of the game to benefit" religious interests.

However, Kelsey Dallas at Salt Lake City's Deseret News tabulates that Breyer, in tandem with fellow liberal Justice Elena Kagan, voted with conservative justices in nine out of the 13 Court's decisions from 2006 to 2020 that backed religious-freedom claims.

The most illustrative example of the Jewish justice's thinking came in 2005 with two apparently contradictory rulings about Ten Commandments displays on public property. Beyer formed a 5-4 majority to permit the display on the Texas state Capitol grounds (Van Orden v. Perry) but then switched to create a 5-4 majority that outlawed displays in two Kentucky courtrooms (McCready County v. A.C.L.U.)

How come? Breyer advocated the "fullest possible" religious liberty and tolerance to avoid societal conflict.


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New podcast: Are some SCOTUS justices asking, 'Are all religious schools equal in Maine?'

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New podcast: Are some SCOTUS justices asking, 'Are all religious schools equal in Maine?'

Let’s say that, in the state of Maine, there are two very different “Lutheran” schools. You could, in this hypothetical case, also say “Episcopal,” or “Presbyterian” or “Congregational.”

Leaders at one of these schools insist that their school is in “the Lutheran tradition,” and it may retain ties to a doctrinally liberal flock. The school has a chapel, but attendance is optional since its students (it may be an elite boarding school) come from all kinds of religious faiths or have no stated faith at all. Classes on hot-button moral issues — sexuality, for example — stress this church’s progressive doctrines.

Academic life is very different at the other Lutheran school, which draws most of its students and financial support from a conservative Lutheran body. Chapel attendance is required and classes linked to moral theology are quite countercultural — defending 2,000 years of Christian tradition.

The question, in the latest church-state case at the U.S. Supreme Court, is whether the state of Maine has the power to say that the first school is eligible for tuition support — using tax dollars — because it’s policies do not clash with those in public schools. Students at the conservative school are not eligible, because its beliefs are “sectarian.”

This is tricky territory and church-state experts on the Religious Right would certainly disagree with experts from the Religious Left and secular think tanks. The question discussed in this week’s “Crossroads” podcast (click here to tune that in) is whether journalists covering this case allowed readers a chance to understand the views of activists on both sides.

Let me state, right up front, that my dueling Lutherans illustration is based on “equal access” church-state principles that emerged from a left-right coalition during the Bill Clinton administration. The big idea: If state officials create policies that affect nonprofits, they cannot back secular groups while discriminating against religious organizations. States could, however, deny aid to both. In other words, religious faith is not a uniquely dangerous form of speech or activity.

Let me state this another way. Under the separation of church and state, officials are not supposed to use tax dollars to back state-approved forms of religion. Ah! But what if some religious groups have doctrines that are consistent with state policies, while others clash with the doctrines of the state?


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SCOTUS flips script on COVID-19 worship bans, but Francis Collins of NIH urges closures

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First New York.

Now California.

With the addition of a fifth, solidly conservative member — new Justice Amy Coney Barrett — the U.S. Supreme Court has flipped the script on months of legal battles over pandemic-era worship gatherings.

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” Justice Neil Gorsuch wrote last week as the 5-4 court blocked New York from imposing strict attendance limits on religious services.

Then on Thursday, the court “sided with a California church protesting Gov. Gavin Newsom’s pandemic-related restrictions on indoor worship services,” noted the Washington Post’s Robert Barnes. The brief, unsigned order returned the issue to lower court judges and “suggests the state’s ban on indoor services is likely to fall,” reported the Los Angeles Times’ David G. Savage.

In San Francisco, Catholic Archbishop Salvatore Cordileone has complained that the city’s “treatment of churches is discriminatory and violates the right to worship,” as explained by the Catholic News Agency. For more details on the California battle, see Sacramento Bee writer Dale Kasler’s story this week on churches defying Newsom’s order.

In related news, the Deseret News’ Kelsey Dallas highlighted a clash over in-person classes in religious schools in Kentucky. And Boston.com’s Nik DeCosta-Klipa covered Massachusetts Gov. Charlie Baker’s concerns over “COVID-19 clusters stemming from religious gatherings.”

Here in my home state of Oklahoma, Gov. Kevin Stitt has refused to issue a statewide mask mandate that might help slow the spread of COVID-19. But he declared Thursday a day of prayer and fasting over the coronavirus, as reported by The Associated Press’ Ken Miller.

Amid a surge in COVID-19 hospitalizations and deaths nationally, a top public health official Thursday “called on religious leaders to keep their worship spaces closed, despite rising protests from some church leaders,” according to NPR’s Tom Gjelten:


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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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