Religious Liberty Wins Big at the Supreme Court

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Maggie GallagherMaggie Gallagher is a Senior Contributor to The Stream, June 27, 2017 – A big win today for religious liberty from the Supreme Court. In a sweeping 7-2 decision, the Supreme Court upheld the First Amendment. The case was Trinity Lutheran v. Comer.

Missouri offered recycled tires to schools for safer playgrounds. Missouri said that Trinity Lutheran School couldn’t even have used tires. Why? Because it is run by a church.

Keeping kids safe doesn’t spread the Gospel. There is no “compelling state interest” in leaving religious school playgrounds more dangerous than public ones.

Chief Justice John Roberts knew what to think about banning an ordinary public benefit like safety equipment from a school just because it’s Christian. He called it “odious to our Constitution.”

Here’s a second piece of (maybe) good news. The Court today decided to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission. Colorado fined baker Jack Phillips for refusing to decorate a gay wedding cake.

Mississippi’s Religious Freedom Act

A third piece of good news from the lower courts: Last week a 5th Circuit Court of Appeals panel lifted an injunction. It had blocked Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act.”

Mississippi’s 2016 law is the best in any state. It provides the broadest protections for gay marriage dissenters. It guards those with three specific beliefs:

  • Marriage is the union of one man and one woman;

  • Sexual relations are properly reserved to such a marriage

  • Man or woman refers to an individual’s immutable biological sex.

The law gives religious organizations new protections. Government may not force them to provide goods and services for a gay wedding. It can’t punish them for hiring believers who agree with their teachings. They don’t have to offer married student housing to gay married couples. They can’t be banned from running foster care or adoption agencies for their marriage policies.

Individuals also receive new protections. Government can’t punish:

  • Traditional believers who wish to be adoptive or foster parents.

  • Medical and other professionals who won’t take part in sex reassignment, fertility services, or psychological counseling.

  • Business owners who decline to provide goods and services for weddings.

  • State employees who express their beliefs. (If Georgia had passed such a law Atlanta fire chief Kelvin Cochran would still have his job.)

The 5th Circuit three-man panel of judges did not rule on the substance. Instead they ruled that the plaintiffs lacked standing to sue. Merely feeling “triggered” or stigmatized doesn’t count as a harm.

The first time a wedding photographer refuses a client, however, the law will likely be back on trial. (An aside: the law’s chances of surviving under the current Court would be stronger if it protected both gay marriage supporters and dissenters.)

If religious freedom means anything it is that the government may not exclude us based on our faith.

The plaintiffs have requested that the whole 5th circuit review the three-judge ruling. But if this ruling stands Trump will have more time to appoint another Gorsuch to the court.

An Insight Into the Supreme Court

The good news is the Trinity Lutheran victory shows us the current Court is more supportive of religious liberty than many of us feared.

Justice Elana Kagan joined the majority opinion without any reserve. Justice Breyer wrote his own concurring opinion limiting his judgement to playground resurfacing programs and not all government benefits.

Only Justices Sonia Sotomayor and Ruth Bader Ginbsurg dissented. In Justice Sotomayor’s dissent, she warned of almost apocalyptic consequences:

This ruling, “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” she wrote, “If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

If so, it’s a good thing.

If religious freedom means anything it is that the government may not exclude us based on our faith. It may not tell Muslims they can’t build a mosque. It may not tell a church “Our firemen won’t protect your buildings.” It may not tell a religious school that their children’s safety doesn’t matter.


Maggie Gallagher is a Senior Contributor to The Stream.