Religious Liberty Wins Big at the Supreme Court

This Jan. 25, 2012, file photo, shows the U.S. Supreme Court Building in Washington. The Supreme Court is in its final week of work before a long summer hiatus.

By Maggie Gallagher Published on June 26, 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.

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  • Tom Rath

    The grant in Masterpiece is intriguing, and I gladly admit I was wrong in expecting another denial.

    Save swapping Gorsuch for the late A.J. Scalia, this is the same Court that threw out all prohibitions against same-sex marriage two years ago today and denied review in Elane v Willock (the New Mexico photographer case) 4 sittings ago.

    I see today’s grant as an indication that this Court is prepared to settle this issue in one fell swoop rather than waiting for a circuit split, and that the difference between this grant and the Elane denial is one pro-SSM Justice (or more??) who is/are confident in that outcome.

    This may be the grant that keeps Kennedy around one more term.

    • m-nj

      this grant has worked the libs into a froth… again. i see a lot of comments on other sites of people asking, “if a gay baker refused to serve a christian, would that be ok with you?” ABSOLUTELY! any business should be able to serve or refuse to serve any person for any reason whatsoever. anti-descrimination laws are meant to keep the government from bias and favortism, not to force private citizens and businesses into working with or serving other people.

      • Tom Rath

        Actually, the roots of public accommodation laws in this country come from English common law (going back to the era of Roman rule in England) and were part of everyday life in Colonial America. They primarily were applied to innkeepers, coachmen, ferryman, etc.

      • Paul

        The civil rights act clearly calls out many types of privately owned businesses, it clearly meant to impact them regardless if we disagree with it. IIRC it made no mention of homosexuals though, that was judicial activism at work.

      • maggie galalgher

        I recall the Gov. of New Mexico’s hairdresser refused to cut her hair because she supported a marriage amendment. Nothing bad happened to him, praise God.

    • maggie galalgher

      Tom you may be right. The liberals who see no reason to penalize religious kids with more playground accidents will likely see the need to protect LGBT from discrimination to be a compelling government interest. The fact only 3 justices dissented from the Pavan per curiam also not the greatest sign. But celebrate while we may.

  • Paul

    When I read Sotomayors dissent I wonder if she has read the Constitution.

  • OrlandoRican

    Someone please tell Ms Sotomayor that “separation of church and state” is not in the Constitution. It is a liberal creation.

  • Oh Maggie, Maggie, Maggie, Maggie.

    In Mississippi, House Bill 1523 says people can deny services or goods for the “celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction,” which would include pre-ceremony celebrations, post-wedding celebrations, anniversary celebrations and other related celebrations. It isn’t about just weddings, it is about ANYTHING that acknowledges the legal right of Gay couples to marry in Mississippi.

    It will be interesting to see which government agency in Mississippi concludes that the owner of a bakery can turn away a couple that wants a wedding cake, but also concludes that a restaurant cannot turn away the same couple, 20 years from now, who wish to have an anniversary dinner party. What constitutional standard will be used to determine this?

    It will also be interesting to see how judges and courts determine which cases of discrimination are motivated by “religious freedom,” and which are motivated by simple animus. Do we simply take the business owner’s word for it? And if the baker is an Atheist who doesn’t like Gay marriage, is he out of luck?

    Can this bill also be used to turn away Muslim or Atheist couples? It goes without saying that there is a great deal of animosity toward Muslims among evangelical Christians these days. If a Christian florist, for example, refused to provide flowers for a Muslim couple’s wedding, saying that to do so would be an “endorsement” of Islam, will the law in Mississippi allow her to refuse service?

    The bill ALSO permits any taxpayer-funded government official to turn away Gay couples who are seeking a marriage license, as long as the official uses his “religious freedom” as an excuse. Imagine your tax dollars paying the salary of someone who discriminates against YOU.

    • DCM7

      The paragraph about “Muslim or Atheist couples” gives away your game. No argument in favor of “gay marriage” can exist without falsely likening it to some form of actual (heterosexual) marriage, whether it be interracial or something else.

      • The Obergefell decision made Gay marriage legal nationwide. It is “actual marriage.” Discriminating against ANYONE for exercising a legal right is simply wrong, and I’m pretty confident the Supreme Court will agree.

        • DCM7

          X+X and Y+Y don’t equal X+Y, particularly when X and Y are such inherently, fundamentally different things as men and women. No law will ever change that.

          But of course there’s no use in pointing out an obvious falsehood to someone whose position requires them to stubbornly pretend it’s true — particularly when laws, in defiance of the hardest of hard realities, unjustly support that falsehood.

          As I like to say, knowledge and understanding don’t hang around where they’re not wanted.

        • maggie galalgher

          It is in the government’s opinion actual marriage. Are we required to believe what the government believes?

          • No, you don’t have to believe ANYTHING. But then again, the legal benefits and protections of marriage do not come from you.

          • Shaquille Harvey

            Where then do ” the legal benefits and protections of marriage “come from ?
            What was their intended purpose and criteria with regards to marriage?
            What was the basis for all this ?
            Who was the basis intended for ?
            Was the objectivaty in all this and how ?
            Was this, in its intended entirety, was ever need to change i.e. Its definition? If yes why ?
            Why do those who don’t agree to the decision and change have to comply even though it will going against thier convictions ? That also has been protected and has legal rights ?

    • maggie galalgher

      Under Mississippi law yes. The atheist with moral objections to gay marriage is out of luck. Feel free to expand it. I’d support it. I would also support a viewpoint neutral one that said, whatever your views on marriage we aren’t going to use the power of the state to force you assist in a wedding.

      • maggie galalgher

        What would this mean for gay Mississippi couples? They might have to discover their friendly baker or florist who served them for many years doesn’t believe in gay marriage. In which case why do you want someone like that helping your wedding? But the government sides with the gay couple. In all legal matters their union will be treated as a marriage. Is there room for gay marriage dissenters?

  • Being the two are hostile to each other, if religious freedom won then Christian liberty lost, as it always does when the First
    Amendment’s First Commandment-violating religious freedom is fostered.

    Furthermore, this Playground ruling was indeed a victory–for more socialism, theft by the government.

    For more, see online Chapter 11 “Amendment 1: Government-Sanctioned Polytheism” of “Bible Law vs. the United States
    Constitution: The Christian Perspective.” Click on my name, then our website. Go to our Online Books page, click on the top entry, and scroll down to Chapter 11.

    Then find out how much you really know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey in the right-hand sidebar and receive a complimentary copy of a book that examines the Constitution by the Bible.

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