The emergence of a dogged, determined secularism notwithstanding, religious liberty litigators are curiously optimistic about their prospects in court.
In the near term, the sunny uplands of religious freedom are seemingly in sight: the sharp rightward pivot on the Supreme Court may redound to the benefit of embattled religious believers, while a constellation of well-organised cause lawyers are carefully crafting new cases to vindicate the position of conscientious objectors in a post-Christian society.
“The future is very bright,” said Luke Goodrich, vice president and senior counsel of the Becket Fund for Religious Liberty, a public interest law practice. “We’ve seen great success over the last five to 10 years both in securing the right of religious people to serve and live out their faith in public life and in reducing the amount of government hostility towards religion.”
Still, freedom of conscience remains a much-litigated area. The Supreme Court is currently considering whether to take on an LGBT rights case that bears on this subject.
In March, the 6th US Circuit Court of Appeals found against a Christian funeral home director, Thomas Rost, who dismissed a transgender employee who refused to comply with the company dress code in view of a pending gender transition. The employee, Aimee Stephens, is a biological male who identifies as a woman. The 6th Circuit concluded that Stephens’s termination violated Title VII, the federal law which governs discrimination in the workplace. Stephens’s dismissal was not a function of gender identity. Rather, Rost fired Stephens for failure to adhere to the company dress code, which requires male employees who interact with patrons to wear business suits.
Nonetheless, the court concluded that Rost administered the dress code in a discriminatory manner, because the code reflects “stereotypical notions of how sexual organs and gender identity ought to align” – requiring biological men to dress as men betrays gendered expectations about how men ought to present themselves, behave and go about their lives. Such sex-based stereotyping, the court said, is unlawful.
The funeral home is now asking the Supreme Court to overturn the 6th Circuit’s decision. Two other cases which ask whether Title VII prohibits discrimination against gay workers are also pending before the court.
The Alliance Defending Freedom (ADF), which supported Christian baker Jack Phillips in last term’s Masterpiece Cakeshop case – he refused to make a wedding cake for a gay couple – is providing counsel for the funeral home.
ADF is also litigating a similar case in Arizona, where two Christian creative professionals who operate an art studio that produces content for life cycle ceremonies are challenging Phoenix’s public accommodations ordinance. The artists say the law requires them to create custom artwork for events like same-sex weddings to which they have good-faith religious objections.
Apart from conscience cases, one of the standout items on the Supreme Court’s docket this term pertains to religious displays in the public square.
That case arose in Bladensburg, Maryland, where the American Humanist Association brought a First Amendment challenge to a veterans memorial shaped like a Latin cross. The American Legion erected the monument in 1925 to honour the First World War dead, though a state parks commission has administered the site since 1961. The 4th US Circuit Court of Appeals agreed that the memorial, known as the Peace Cross, is an unconstitutional government endorsement of Christianity. As Arlington National Cemetery falls within the 4th Circuit’s jurisdiction, the legion and its supporters believe this decision compromises similar monuments on the nation’s hallowed ground.
The justices agreed to take up the case in November and will probably hear arguments in February. A decision will follow by June. The Becket Fund is also asking the Supreme Court to take up a related case involving a public cross in Pensacola, Florida.
Religious display cases are maddeningly fact-specific and Supreme Court justices do not always divide along the usual ideological lines. In 2005 Justice Stephen Breyer, a liberal, joined the court’s conservatives to protect a sculpture of the Ten Commandments adjacent to the Texas state house.
The Peace Cross case also presents an opportunity for the court to clarify its famously confused jurisprudence regarding religion in public life. “As most justices of this court have observed, and as the district court here recognised, ‘establishment clause jurisprudence is a law professor’s dream, and a trial judge’s nightmare’,” the legion’s petition to the Supreme Court reads.
While the judicial environment may be friendlier for religious liberty plaintiffs in the future, the flurry of cases suggests that courts are an uncertain bulwark against a rapidly secularising culture.
The situation remains forbidding even for those who manage to prevail in the judiciary. Not one month after the Supreme Court concluded that the Colorado Civil Rights Commission exhibited unlawful hostility to the Cakeshop’s Phillips, a state anti-discrimination agency entered a new complaint against him. Phillips is now suing state officials in federal court, alleging that they have singled him out for harassment.
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