Last year I wrote an article in this paper praising the U.S. Supreme Court for its support of religious liberty during the year. Another term of the Supreme Court has just ended with similar good news.
The Supreme Court hears cases in nine-month terms named after the first month of the term. The October 2020 term, like the October 2018 term, has consistently upheld the freedom to exercise religion.
The most important religious liberty case of the term was Fulton v. City of Philadelphia. Philadelphia had a policy of not using any agency for the placement of foster children unless it would place children with couples of the same sex. This excluded the Catholic agency of the Archdiocese of Philadelphia. The Court unanimously held that Philadelphia’s requirement violated the right of the Catholic agency’s entitlement to a reasonable accommodation of its religious beliefs.
Some people wish that the Court had gone further and overturned the 1990 case of Employment Division v. Smith, in which the Supreme Court held that a government agency could fire an employee for the use of Peyote, despite the employee’s claim that his use of peyote was a religious practice. Approximately 90% of the scholars who published articles about the Smith case treated it as an alarming violation of religious liberty.
They were proven wrong in the 1993 case of Church of Lukumi Babalu Aye v. City of Hialeah, in which the Court struck down a city ordinance against sacrificing small birds. Many of them persisted in their criticism of the Smith case and argued that the Hialeah case was based on very peculiar facts and would not be an important precedent.
They were wrong again. The Fulton case follows the reasoning of the Hialeah case. Religious liberty is about religion, not about law breaking. Between 1878 and 1946, the Supreme Court has repeatedly upheld prohibitions against polygamy. No one seriously argues that honor killings and widow burnings are legal. Four times during the recent pandemic the Supreme Court has told California that it can prohibit gatherings but cannot prohibit church gatherings that would be legal if they were not religious. The use of polygamy and plural marriages are illegal generally, not because of religion. Sacrificing birds was outlawed by Hialeah clearly because it was religious. California was clearly treating churches worse than casinos. Philadelphia clearly was singling out Catholic adoption agencies, because of their beliefs.
During the October 2020 term, the Supreme Court also decided that the government cannot force charities to disclose their donors. This follows the pattern of the Civil Rights Movement when governments were denied access to NAACP membership lists. This ruling will potentially help prevent religious persecution.
During the term that will start in October, the Supreme Court will hear a case in which parents of children in religious schools in Maine seek to share in the tuition support that parents of children in non-denominational private schools get. The Supreme Court probably would not have taken this case if it were not considering expanding on its 2017 case Trinity Lutheran Church v. Comer, which questioned the Constitutionality of the anti-Catholic Blaine Amendments adopted by a majority of the states. There is every reason to believe that the Supreme Court will continue of its path of expanding the free exercise of religion.
Charles G. Mills is a writer, lecturer, and retired lawyer living in Front Royal