Friend at Court

In a symposium last week on the Supreme Court’s religion cases, Professor Mark Rienzi of the Catholic University of America Columbus School of Law advanced the view that although in the Supreme Court term just ended its nine justices were often deeply divided over important questions, “there was one area of the law in which the justices seemed to be weaving together a set of precedents that could nurture some long-term peace” — that of religious liberty.

As president of the Becket fund for religious liberty, America’s leading legal advocacy group for the rights of religious individuals and institutions, Rienzi is well positioned to make that assessment. Indeed, Becket represented parties or amici in many of the religion cases heard by the Supreme Court during the last term, and Professor Rienzi was the winning counsel in two of those cases decided on the same day, July 8, both with 7–2 majorities.

The court’s most recent religion-related decisions ranged across a wide variety of subjects, from teachers at religious schools to religious exemptions from federal mandates and state constitutional provisions rooted in anti-Catholic bigotry. But, Rienzi writes, they all “harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society.” Even more importantly, Professor Rienzi stressed, “the court’s move toward anchoring a pluralistic approach within the law of religious liberty is part of a long-term trend…. [and it] looks set to extend the trend next term….”

In the Bostock case for example , in which the court interpreted Title VII of the 1964 Civil Rights Act to prohibit employment discrimination on the basis of gender orientation, the court made sure to address concerns about religious liberty, emphasizing that the Constitution’s free exercise clause “lies at the heart of our pluralistic society” and that the justices were “deeply concerned with preserving the promise of the free exercise of religion.” It also took note of protections provided by Title VII’s “express statutory exemption for religious organizations,” and the Religious Freedom Restoration Act, which “operates as a kind of super statute, displacing the normal operation of other federal laws.”