Will the Supreme Court protect religious liberty?

The United States stands as a profoundly unique system of government. Its adaptability and the “balance of powers” in tension with the absolute rule of law reflect our founding fathers’ remarkable foresight. America has withstood harsh tests of its integrity ever since its founding. 

One of the greatest institutions is the Supreme Court, established to interpret the law at the highest level of authority. Dr. Jim Denison wrote about this extensively regarding President Joe Biden’s pledged selection of the next appointment for the Supreme Court.

While we cover the opposing force of the culture most days at Denison Forum, the makeup of the Supreme Court can provide consolation to concerned Americans and their recent decisions warrant cautious optimism. 

How does the Supreme Court work? 

There are three levels of federal courts, which act as judges of the law at the federal level. A case will go to the district courts; if successfully appealed, the case goes to the circuit courts. If the case is appealed again, the Supreme Court justices might select it from a pool of cases to hear it. The case requires four of nine judges to agree to hear a case. In a year, the Supreme Court hears about 1 percent of the cases handed up to them. Here’s a helpful explainer video for more details. 

The Supreme Court is meant to be nonpartisan, though they often split down conservative or progressive lines of ideology in a general sense. Since Biden is a Democrat, his nominee will probably be progressive in their interpretation of the law. Donald Trump’s picks were conservative in ideology, and Barack Obama conversely picked progressive candidates. Such is the partisan world we live in. 

At some level, however, the Supreme Court represents a bastion of nonpartisanship since their goal is not to represent the people per se, but rather to faithfully, objectively interpret the law. 

Perhaps a reader will think this naive. Maybe, but maybe not. 

Let’s examine a recent and hopeful trend.

A positive outlook for religious freedom

The Supreme Court’s power is often underrated. In the past, their interpretation of the constitution has led to devastating, grievous consequences for our country, as in the case of Roe v. Wade. 

As Dr. Denison observed, the Court “discovered” rights to abortion in 1973, and, in 2015, the right to same-sex marriage. He also briefly touched on different interpretation methods in applying the Constitution. 

On the other hand, in the past decade, several important religious freedom cases have come before the Supreme Court, and they have almost all been favorable for freedom. We won’t cover them all here, but this list comprises most of the relevant cases. In fact, the number of religious freedom cases heard and decided by the Supreme Court has skyrocketed in recent years. 

While it is true that, currently, six of the nine judges are conservative in their interpretation of the constitution, some of these rulings were unanimous or went beyond traditional ideological divisions. 

• 2014 Burwell v. Hobby Lobby Stores (5–4) 
  • In this case, the court upheld that the Religious Freedom Restoration Act (which, in 1993, nearly unanimously passed in Congress and was signed into law by Bill Clinton) applied to for-profit businesses. This allowed Hobby Lobby to be excluded from being forced to provide contraceptives to employees as part of their health care coverage. 
• 2018 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (7–2) 
  • The court ruled in favor of the baker, who claimed his creating a wedding cake specifically for a gay couple would not be glorifying to God. His craft, he argued, was an exercise of free expression. If the couple had bought a pre-made cake, such a refusal would have probably constituted illegal discrimination. Notably, two progressive-leaning judges voted to uphold religious freedom in this instance.
• 2020 Tanzin v. Tanvir (unanimous) 
  • A group of Muslim men sought damages from the government for unjustly putting them on the FBI no-fly list. They were placed on the list for refusing to spy on other Muslims in their mosque. The Supreme Court ruled unanimously to protect the Muslim men’s rights to seek monetary damages from the government for violating their First Amendment rights. 
• 2020 Roman Catholic Diocese of Brooklyn v. Cuomo (5–4) 
  • The court ruled in favor of the Catholic church and two Jewish synagogues, who claimed the Covid-19 restrictions in New York violated their First Amendment rights, considering that other secular businesses were allowed to meet in the same areas. 
• 2020 Fulton v. City of Philadelphia (unanimous) 
  • Catholic Social Services helps find foster parents for children. They refused to examine same-sex couples for placement, asserting that approving them would be a form of approval of their homosexual marriage. The court ruled in favor of the Catholic institution. Unfortunately, due to the specific circumstances of this case, the ruling probably won’t act as a sweeping precedent. 
• 2021 Uzuegbunam v. Preczewski (8–1) 
  • In this case, the court ruled in favor of two students trying to share their faith on a college campus, though it was a legal technicality they were fighting over. The encouraging piece of this story is the college itself: it overhauled its free speech policy to better allow religious students to talk about their faith and pass out tracts. 
• 2021 Tandon v. Newsom (5–4) 
  • In this case, a liberty-favoring precedent was set. According to one journalist, “After Tandon, religious individuals and organizations shouldn’t have to work as hard to make a successful religious exercise claim.” In this case, again like in the Diocese case, the court favored religious gatherings over California’s Covid-19 restrictions. 

Several more religious freedom cases will be heard in the coming year as well. See Kelsey Dallas’ list at Deseret News. 

Because the constitution explicitly protects religious liberty and the exercise of free speech, the Supreme Court provides a nonpartisan ally to religious liberty. Eventually, the Supreme Court might have a chance to overturn Roe v. Wade. 

Religious liberty in these ways would be severely undermined if the Equality Act passes, a bill currently being considered by the Senate. Let’s briefly touch on that and why some might disagree with the religious liberty progress being made.  

Why doesn’t everyone want religious freedom?

As Dr. Jim Denison has previously noted, some staunch progressives come from a worldview that sees through the lens of Critical Theory. We’ve covered Critical Theory and will continue to do so, as its relevance persists in political discussions. 

Suffice to say, Dr. Denison has pointed out that the culture’s view on sexuality is such that if religious organizations discriminate against LGBTQ people, we are just as morally repugnant as white supremacy groups who discriminate against people of color. As such, the Equality Act is designed to remove religious exemptions to protect LGBTQ people. 

Though their worldview is obviously tragically misguided, from their position their moral outrage is fully understandable

For instance, a progressive commentator at Vox argues that these rulings mentioned above will lead to “fewer rights for disfavored groups.” The commentator implied that the Hobby Lobby case injured women workers since it led to them not providing contraceptives and even implied that women have a fundamental right to contraceptives.

The crux of the disagreement boils down to how we define discrimination, harm, and rights. Certainly, LGBTQ citizens of the US should be protected as equal citizens under the law. However, religious institutions should keep their right to refuse to act against their conscience. 

We’re left with each side believing they are fighting for the health of a group of people and each defending what they view as fundamental human rights.

The legal fight will escalate if the Equality Act becomes law. While there are more nuanced legal issues with the Equality Act, I encourage readers to check out this interview with Greg Baylor, who serves as senior counsel with Alliance Defending Freedom. 

Religious liberty should mean loving LGBTQ people

There are two main, intertwined reasons that Christians fight for religious liberty in this country. 

First is the moral reason. Morally, the Bible does not permit any sexual relations outside of his plan for marriage between one man and one woman. Therefore, anything affirming sexual relations outside of this is unbiblical (see “What does the Bible say about homosexuality?”). 

The second is love. We believe that God’s best for people is a certain path, according to the wisdom revealed through the Bible. Sin leads to destructive consequences. It’s not us making up rules to take away people’s pleasure; it’s the Creator of the universe revealing what’s best for us. 

That being said, while the church has defended its religious liberty with fierceness, we have to ask the question: Why? Or, rather, what do we do with that liberty? 

Is our purpose to discriminate against LGBTQ people? Was God’s mission for us to further a kingdom of arrogance or to look down on others? Did God set up the church so that we could spend our time stewing with prejudice? 

By God, I say no! 

We are beggars leading beggars to bread; sinners leading sinners to Jesus. 

I tremble to think that I am sometimes like the Pharisee praying, “God, I thank you that I am not like other men, extortioners, unjust, adulterers, or even like this tax collector.” (Luke 18:11) 

Here are two personal accounts on the struggle of homosexuality by Christians, I would recommend: Gay Girl, Good God by Jackie Hill Perry, and Gregory Cole’s Single, Gay, Christian.

While the church has often focused on LGTBQ issues, remember that our ultimate end is love and pointing people to Christ. And, indeed, lust, pornography, adultery, and divorce are all against God’s plan for sex, just as expressions of LGBTQ sexuality are. 

I affirm religious liberty, but what we do with that liberty is what matters. We have the privilege of religious expression—what will we express? Love or hate? 

We defend these rights because we believe in speaking the truth in love about these issues, and we believe it is unconscionable to support immorality. But let’s never forget to start with examining our own hearts. 

Let the gospel be the only hill we die on.