Religious Freedom & The Roberts Court

Transcription

1 Religious Freedom & The Roberts Court Hannah C. Smith Senior Counsel, The Becket Fund for Religious Liberty J. Reuben Clark Law Society Annual Conference University of San Diego February 12, 2016

2 Religious Freedom in America Americans embrace religious freedom because we believe that the foundation of human dignity and liberty is a free conscience not just the freedom to do what you want, but to do what your faith says you must and to respect the right of your neighbor to do the same.no matter who you are or where you come from regardless of your race or creed, your political affiliation or sexual orientation to be free in America is to know you won t be forced to compromise your conscience as a price of your citizenship. (Senator Mike Lee, Conserving Religious Liberty for All, June 11, 2015.)

3 2006: Gonzales v. O Centro Beginning of the Roberts Court era First case decided under federal Religious Freedom Restoration Act (RFRA) (post-boerne) 9-0 (Roberts): government failed to show a compelling interest in barring a minority religious group s sacramental use of hoasca (hallucinogen banned by federal drug laws)

4 2012: Hosanna Tabor v. EEOC Terminated minister sues under the ADA Whether 1 st Amend. ministerial exception to the discrimination laws applies U.S. Solicitor General argues that no blanket rule exists to protect the selection of ministers by religious organizations

5 2012: Hosanna Tabor v. EEOC 9-0 (Roberts): Court upheld ministerial exception and it applied to bar the lawsuit here The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

6 2014: Burwell v. Hobby Lobby

7 2014: Burwell v. Hobby Lobby 5-2 opinion (Alito) on the threshold question of whether for-profit corporations have religious liberty rights under RFRA Alito joined by Roberts, Scalia, Kennedy, and Thomas decided yes, closely held family businesses do have rights under RFRA Breyer and Kagan did not join dissent on this point A 5-4 opinion (Alito) on the merits: there is a substantial burden to the exercise of religion and there is a less restrictive means of accomplishing this government interest Dissent by Ginsburg joined by liberal Justices

8 2014: Town of Greece v. Galloway Plaintiffs claimed an Establishment Clause violation where town started its council meetings with prayers led by volunteer members of the public Plaintiffs claimed the practice favored Christians and improperly endorsed faith-specific prayers 5-4 opinion (Kennedy): Citing Marsh and this country s historical practice of legislative prayer, the Court held that the prayer need not be generic and as long as it does not coerce participation by nonadherents, it was not a violation of the Establishment Clause.

9 2015: Holt v. Hobbs RLUIPA challenge to denial of religious beard in prison 9-0 (Alito): Substantial burden if state forces the choice of violating beliefs or suffering discipline Can t be LRM because over 40 other prison systems including federal prison system permit ½ inch beards

10 2016: Little Sisters of the Poor v. Burwell Administration: religious non-profit ministries not religious enough to qualify for an exemption RFRA challenge to HHS accommodation that hijacks Little Sisters insurance plan to cover drugs Little Sisters beg for money to support ministry; would be used to pay approx. $70 million in fines to IRS Supreme Court oral argument scheduled for March 23rd

11 2016: Trinity Lutheran Church v. Pauley Missouri denied generally available state aid to church preschool under state constitution no aid provision 1 st Amendment challenge to Blaine Amendments Will be argued October 2016 Right answer: Constitution does not require government indifference toward religion and does not permit government exclusion of religion.

12 2016: Stormans v. Wiesman Washington state pharmacy board issued regulations requiring pharmacists to stock and dispense drugs that can cause abortion (Plan B and ella) Religious pharmacists sued under 1 st Amendment (no WA state RFRA), claiming religious targeting, etc. Federal trial court held for pharmacists, but Court of Appeals for the Ninth Circuit reversed Cert petition pending before US Supreme Court

13 Questions? Hannah Smith Hannah C. Smith 2016