The Supreme Court Inches Toward Religious Freedom

In its most recent term, the court handed down several decisions that protect First Amendment rights. What comes next?



Sept. 23 2020
About the author

Howard Slugh is the general counsel of the Jewish Coalition for Religious Liberty.

In its next term, set to begin on October 5, the Supreme Court will make decisions that could significantly impact the constitutional right of Americans to exercise their many religious faiths. Whether and how much they do will depend in part on who succeeds the late Justice Ruth Bader Ginsburg. If the nominee is dedicated to applying the original public meaning of the Constitution, she can help protect religious practice in ways that significantly benefit the American Jewish community. Given Ginsburg’s role as a dissenter in most of the court’s recent religious-liberty decisions—which, as we’ll shortly see, have been on the whole protective of the rights of religious Americans—her successor is unlikely to change the overall result of those future decisions. But, at least going by many of the names currently being discussed in the press, that replacement is likely to reinforce the present majority and help it offer more robust and conclusive decisions, perhaps even landmark decisions of a kind not seen in recent years.

In the near future, the court could issue important decisions on matters as varied as reestablishing meaningful employment protections for Sabbath-observant Jews under Title VII of the 1964 Civil Rights Act, restoring Americans’ ability to challenge the constitutionality of generally applicable laws that burden religious exercise, and securing the freedom of college students to express their faith publicly on campus. For these reasons, and others we’ll get to, a Supreme Court nominee who is likely to interpret the law in a manner that protects religious liberty will be welcome to American Jews.

Religious liberty for all Americans serves the particular interest of Jewish Americans too, and that means that we should refute the pernicious falsehood that the issues together known as religious liberty primarily favor Christians at the expense of religious minorities. Opponents of religious liberty succeed in promulgating this myth because, while many religious-liberty cases—like litigation regarding Jewish inmates’ access to kosher food—concern religious minorities, it is Christians who are involved in some of the highest-profile and most controversial cases. But looking at those cases alone will give a misguided impression of the court’s purview and its rulings. The truth is that religious minorities are actually overrepresented in religious-liberty litigation, and most cases do not involve controversial social issues but rather rights important to the meaning of the country and to Jews in particular.

Those rights are varied, and the vaguer language of “religious liberty” sometimes conceals more than it reveals. So let’s look at the particulars of three examples of what the court has recently accomplished, followed by one more example of what’s about to come.


This past term, in Espinoza v. Montana Department of Revenue, the Supreme Court found unconstitutional a provision of the Montana state constitution that required the state legislature to deny religious schools access to tuition funding simply because they were religious. The court held that if Montana chose to fund other private schools it could not also discriminate against religious schools by refusing them the same funding. In doing so, it signified the final legal repudiation of the historically and textually unsupportable fiction that the Constitution requires states to exclude religious organizations from public funding simply because those organizations are religious.

The importance of this decision to the Jewish community should not be underestimated. Many Jewish parents, especially Orthodox ones, send their children to religious day schools, which play an irreplaceable role in passing down Jewish identity from generation to generation. Unfortunately, such schools also tend to be extremely expensive. Now, following Espinoza, states and cities will have more leeway to give parents this choice, freeing their own tax dollars for the education of their own children. How many might such a decision help? It’s unclear, but more than thirty states had provisions similar to Montana’s, provisions which are now thankfully recognized as being unconstitutional.

Espinoza was thus a significant victory for Jewish parents, but it also left questions unresolved. While the court held that schools could not be excluded because of their “religious status,” it left open the related and possibly distinct question of whether a state could engage in what it called “discrimination against religious uses of government aid.” To supply an example in plain language, this means that the court held that a state cannot reject wholesale an Orthodox day school from an aid program, but it might still be allowed to ban the school from using government funds for, say, Bible classes. Chief Justice John Roberts, writing for the majority, conceded that there may not be any meaningful distinction between what he called discrimination based on religious identity and discrimination based on religious conduct, and that both types of discrimination may be impermissible. But he concluded that the court would answer that question in a future case.

Let us hope that it does. Such a use/status distinction is illusory and unworkable, as Justice Neil Gorsuch pointed out in a concurring opinion in Espinoza. As he said, the reason that the Montana constitution banned the state from giving money to religious schools is because of “what religious parents and schools do—teach religion.” It would be farcical to claim that the Constitution and its famous free-exercise clause somehow protects religious identity more than religious exercise.


So much for the first recent example. On to the second. In Our Lady of Guadalupe School v. Morrissey-Berru, decided on July 8 of this year, the Supreme Court clarified an important point of First Amendment doctrine that historically allows religious organizations autonomy in how they select their staff and leaders. This is the so-called “ministerial exception.”

In an earlier case, the court determined that decisions relating to the hiring and firing of religious functionaries (“ministers,” in the legal term) are exempt from employment law, but it did not define which employees can be classified as “ministers.” Following that earlier case, some courts applied a strict test and only considered employees ministers in incontrovertible situations, like when they were actually fulfilling religious functions. This led to hardship and uncertainty for religious organizations whose leaders and employees do not resemble Christian ministers. In one such case, a California court determined, incredibly, that a Reform Jewish congregation did not qualify for the ministerial exemption because its teachers were known as “teachers” rather than “ministers,” and were not required to have formal religious training. In other cases, other courts adopted a more flexible test that looked at what the employees actually did to determine whether they qualified as ministers. Courts that adopted this test agreed that Jewish day schools were entitled to protection.

Thankfully, this year, in Guadalupe, the Supreme Court adopted such a functional test, explaining that all teachers entrusted “with the responsibility of educating and forming students in the faith” qualified as ministers. Now courts can no longer exclude Jewish schools from the ministerial exception simply because their teachers are not called minister or rabbi.

The matter is not fully solved, though. As Justice Clarence Thomas noted, while this decision was a “step in the right direction,” there’s still some uncertainty about how courts will determine which duties qualify an employee as a minister. One way forward was sketched out in Thomas’s own concurring opinion, in which he was joined by Gorsuch, which suggested that courts resolve the question by deferring to the “good-faith claims” of the organizations in question. Such resolutions will be vital in ensuring that all religious organizations, including and especially those of religious minorities whose structures don’t resemble the norm, have autonomy to choose their own officials and employees.


Now to the final important religious-liberty case from the last term. In Little Sisters of the Poor v. Pennsylvania, the Supreme Court held that the Department of Health and Human Services (HHS) and other executive agencies have the authority to grant religious exemptions to regulations that they deem burdensome to religious faith. The court held that HHS could thus exempt the Little Sisters, an order of nuns dedicated to caring for the indigent elderly, from that agency’s regulation requiring employers to offer insurance providing access to abortion-inducing drugs, to sterilization, and to contraception.

HHS had granted the nuns such an exemption, in response to which the department was sued by plaintiffs, including several states, who argued that it lacked authorization to do so. According to the plaintiffs, executive agencies had to continue enforcing regulations they consider illegal until a court ordered them to stop. This novel and implausible theory would have created unnecessary hostility as well as burdensome litigation between the government and religious adherents—even in cases when both sides would have preferred to compromise. The court’s rejection of this theory was especially important for religious minorities, because such minorities are most likely to be inadvertently burdened by government agencies unaware of their religious practices. Now, after the Supreme Court’s ruling, if an agency unintentionally crafts a regulation that would require Jews to violate tenets of their religion, the conflict can potentially be resolved by a friendly discussion instead of by a lawsuit.

Still, like in Morrissey-Berru, the court has left some lingering questions unanswered. The holding in the Little Sisters case was so narrow that it didn’t actually resolve the dispute between Pennsylvania and the Little Sisters. While it did firmly establish that the Religious Freedom Restoration Act empowers executive agencies to accommodate or exempt religious adherents burdened by their regulations, it did not fully resolve the conflict between the Sisters and their antagonists. For example, it didn’t determine whether the exemption that HHS created for the Little Sisters was a proper application of that exemptive power. It also didn’t settle the question of whether HHS was required or merely permitted to issue exemptions. This may seem insignificant, perhaps, but it means that a future head of HHS could revoke any current religious exemptions by arguing that they were permitted but not required.

What should be done? Here again we can look to some of the concurrences written by present justices. Samuel Alito, in a concurrence joined again by Gorsuch, argued that the court should have found that HHS was required to offer an exemption similar to the one that it created. Because the Supreme Court did not follow that path, this case is likely to work its way back up in the relatively near future.


That’s the Supreme Court’s recent past on religious freedom, a remarkably important if unfinished set of decisions. What about its near future—the term beginning on October 5? In addition to the few examples laid out earlier, this term promises a ruling that might be even more consequential.

In the upcoming term, Fulton v. City of Philadelphia will give the Supreme Court the opportunity to reconsider the landmark 1990 ruling in the case of Employment Division v. Smith. The ruling in Smith held that the First Amendment’s protections only apply to laws that specifically target religion. By contrast, laws that apply to everyone regardless of religion, and are therefore considered “generally applicable,” are not subject to First Amendment review no matter how significantly they harm religious Americans. Following the Smith decision, for example, a law that banned circumcision for all Americans for reasons having nothing to do with religion could not be seen as violating the First Amendment.

The consequences of the Smith decision have had significant negative repercussions. It prevented a Jewish police officer from obtaining an accommodation to wear a yarmulke, a Jewish woman with developmental disabilities from being placed in a skills-training facility that would enable her to observe the laws of kashrut and the Sabbath, and Jewish parents from having the right to prevent an autopsy from being performed on their child.

Smith was premised on the supposition that granting religious accommodations to generally applicable laws would lead to chaos. But that prediction has proven false. Three years after the Smith decision was handed down, Congress recognized just how restrictive and harmful it would be, and in response passed the Religious Freedom Restoration Act (RFRA), which, through the legislature, restored the legal protections that existed prior to the Court’s decision. In some circumstances, RFRA requires courts to accommodate religious adherents whose beliefs are violated by generally applicable laws—the very accommodation that Smith predicted would lead to anarchy. In applying RFRA, the Supreme Court has demonstrated that it can create religious accommodations without upending the social order. For example, the court unanimously granted a religious accommodation allowing Muslim prisoners to wear beards, despite generally applicable grooming regulations. Civil order remains intact.

Given the Supreme Court’s recent hesitancy to issue broad rulings in religious-liberty cases, it might seem unreasonable to expect it would overturn Smith. Luckily, doing so would not be as radical a decision as it may seem. Its underlying justification has eroded over the last 30 years, as courts have scrutinized generally applicable federal laws under the Religious Freedom Restoration Act, without causing social upheaval. And the Supreme Court itself has already recognized exceptions to Smith. Reversing it would simply be the next incremental step forward.

Will the court take that step? And will it indeed start to take larger steps toward properly interpreting the robust religious-liberty protections imbedded in the Constitution and American law? The addition of another justice likely to support such steps would certainly help the odds.

More about: Politics & Current Affairs, Religious Freedom, Religious Freedom Restoration Act, Religious liberty, Supreme Court