Supreme Court Delivers Big Wins for Religious Freedom

Will the Court apply this robust view of religious freedom in upcoming cases?

In this photo taken on Tuesday, April 4, 2017, the Supreme Court Building is seen in Washington.

By Travis Weber Published on June 30, 2017

“[L]aws . . . that single out the religious for disfavored treatment” are not permissible. So held a large majority of Supreme Court justices on Monday in Trinity Lutheran Church v. Comer. The Court ruled 7-2 that excluding a group from a Missouri grant program just because of its religious nature violates the Free Exercise Clause of the First Amendment.

On the same day, the Court agreed to hear Masterpiece Cakeshop v. Colorado Civil Right Commission. That case asks whether the First Amendment protects religious small business owners from being forced to participate in same-sex wedding events. And just one day later, the Court remanded four cases dealing with whether religious schools can receive government aid for reconsideration in light of its decision in Trinity Lutheran.

In short, it’s been a good week at the Court for religious freedom.

At the crux of its Trinity Lutheran opinion, the Court observed that the government’s position “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” The Court declared this unacceptable. The Free Exercise Clause of the First Amendment bars the government from forcing religious entities to choose between freely exercising their religion and being involved in the public square. The fact that seven justices voted for this view of the First Amendment is great news.

Will the Court apply this robust view of religious freedom in upcoming cases? We don’t know. But it got off to a good start the next day with its remand of the religious school cases. Such remands are routine procedure. But the Trinity Lutheran ruling will almost certainly help the schools when the lower courts look at their cases again.

The Cake Store Owner

But will this view of religious freedom extend to Masterpiece? Let’s hope so. In the past several years — with activists spurred on by Obergefell v. Hodges — many small business owners have been penalized by coercive state and local governments. Many of these cases involve owners who serve anyone who walks in the door. For religious reasons, they just don’t want to be forced to use their creative arts as a part of same-sex wedding ceremonies. These business owners have tried to live their lives in peace and mind their own business. The controversies have come to them. When they decline to violate their deeply held beliefs, they are often dragged into court and sued by governments and activists alike. Adding insult to injury, most of the administrative tribunals and state courts have ruled against these business owners. That has put their livelihoods at risk.

Surely a small business owner like Jack Phillips who wants to live out his faith should get such protection.

Masterpiece is the first such case the Supreme Court has agreed to hear. The Court has already held that the First Amendment broadly protects speech — even offensive speech. Surely a small business owner like Jack Phillips who wants to live out his faith should get such protection. Just as in Trinity Lutheran, Phillips’ right to run his business should not be conditioned on him violating his faith.

Gorsuch’s Strong Defense of Religious Freedom

With Justice Neil Gorsuch on the Court, we are one step closer to that ideal. Besides voting with the majority in Trinity Lutheran, he wrote a concurrence (joined by Justice Thomas) outlining an even stronger view of free exercise. He also critiqued the Court’s suggestion that it might try to “discrimi­nate on the basis of religious status and religious use.”

Justice Gorsuch pointed out that the two are often intertwined. It’s not the Court’s job to separate them and grant greater protection to the former and less to the latter. “Does a religious man say grace before dinner?” he asked. “Or does a man begin his meal in a religious man­ner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? … I don’t see why it should matter whether we describe that benefit, say, as closed to Luther­ans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

In his first major religious freedom case, Justice Gorsuch stressed that one cannot separate religious actions from the beliefs out of which they flow. For the sake of Jack Phillips, let’s hope the rest of the Court agrees.


Travis Weber, Esq., is Director of the Center for Religious Liberty at Family Research Council. He attended oral argument in the Trinity Lutheran case, and helped FRC file an amicus brief with a coalition of other groups siding with the church.

Print Friendly
Comments ()
The Stream encourages comments, whether in agreement with the article or not. However, comments that violate our commenting rules or terms of use will be removed. Any commenter who repeatedly violates these rules and terms of use will be blocked from commenting. Comments on The Stream are hosted by Disqus, with logins available through Disqus, Facebook, Twitter or G+ accounts. You must log in to comment. Please flag any comments you see breaking the rules. More detail is available here.
  • Tom Rath

    But, except for swapping Gorsuch for the late Justice Scalia, this is the same Court that declined to review the case of the New Mexico photographer (Elane v Willock) that refused to provide her service to a same-sex couple. One must logically assume that had Gorsuch been in Scalia’s seat when those conferences were held, the outcome would have been the same.

    So, why was the petition granted in Masterpiece…and how many Justices voted for review? Could it be that one or more Justices (Kennedy?) made the decision to address the public accommodation statute issue now rather than waiting for their hand to be somewhat forced by a circuit split a year or more from now? Might the ‘equal protection’ faction within the SCOTUS feel confident enough within their current makeup to uphold the constitutionality of the states’ actions to date?

    It will be interesting to see how expeditiously they choose to schedule arguments in this one. Also will be interesting to see if Ivy Tech decides (within the next week?) to appeal the CA7 decision in Hively. Might we also have a Title VII case in this next sitting?

  • If someone else had been President this term, these decisions could not have been issued. Therefore they only came about because of President Trump’s choice of Gorsuch.

    • Tom Rath

      Gorsuch was the difference in a 7-2 decision? How many votes are they giving him? 🙂

      • Before Gorsuch came on board, the conservative wing was getting stonewalled on everything, so, yes.

        • Tom Rath

          Math says no.

          • It’s not math; it’s psychology. While they had the chance, the left wing stone-walled and wouldn’t budge on anything at all. When another conservative was added, they caved. Not math: psychology.

          • Tom Rath

            What was Scalia?….moderate? Gorsuch took Scalia’s seat on the bench, so it’s basically the same Court (ideologically) that not only denied review on Elane but also ruled on Obergefell, and conversely also ruled on Hobby Lobby, etc. Going back several years, multiple articles had declared the Roberts court the “most conservative in decades”, so your assertions don’t carry much water.

          • Christopher Binkowski

            He does have a point. It may not even so much be because of Gorsuch’s addition to the court, but the trend of the populace to elect and support conservatives. SCOTUS may be unknowingly reacting to this wind of change.


          • There was a long stretch of time in which neither Scalia nor Gorsuch were there. Why do you want the readers to forget that time period (during which the conservative wing was essentially without leadership and was getting stonewalled)?

          • Tom Rath

            There simply were very few cases decided on the merits between Justice Scalia’s passing and Justice Gorsuch’s commission and swearing in April that were real ‘split’ decisions. This sitting actually was one of the lowest in the past several years in ‘close’ decisions. Is it possible AJ Scalia could have swayed a vote here & there with his well-written opinions/dissents?…sure, it’s possible. But, statistically, the likelihood of that switching the vector of the decision is still very low.

            SCOTUSblog has published their ‘stat pack’ for the October 16 sitting, and it includes some good info along these lines. Check out the ‘Merit Cases by Vote Split” slide, among others, for good snapshots regarding this term’s activity. Good stuff.

  • Christopher Binkowski

    The solution is simple: if you go to a public store and buy items readily available to the public, then you are in the right. But if you go and ask for specialty and custom items that are against a person’s beliefs you should not be able to force them with the arm of the government to defile their conscience.

    • Tom Rath

      Which is why the Kentucky shirt printer was not found to have found to have acted in violation of discrimination statutes, because the specific message requested was one the printer would not have provided to *any* customer who had requested it.

      To date, however, the courts have not found products and services such as flowers, cakes, photography, etc., to be ‘specialized’, i.e., there are no “gay” flowers or cakes or photos….there are just flowers and cakes an photos.

      • Christopher Binkowski

        Truth be told, while we are busy debating these silly mortal issues, the bigger issues are at hand:

        ‘But the day of the Lord will come like a thief. The heavens will disappear
        with a roar; the elements will be destroyed by fire, and the earth and
        everything done in it will be laid bare.a

        Since everything will be destroyed in this way, what kind of people ought you to be? You ought to live holy and godly lives as you look forward to the day of God and speed its coming. That day will bring about the destruction of the heavens by fire, and the elements will melt in the heat.
        But in keeping with his promise we are looking forward to a new heaven and a new earth, where righteousness dwells.’ 2nd Peter 3

        Considering we won’t even HAVE marriage in the age to come, how important is all this really? ‘Straining gnats but swallowing camels.’

I Wasn’t the Best Choice for a Husband
Mark Davis Pickup
More from The Stream
Connect with Us