The religious freedom cases the Supreme Court could hear – and refuse – this fall

Washington D.C., Sep 20, 2021 / 16:30 pm

In addition to a major abortion case, the Supreme Court this fall will consider cases on vocal prayer at executions and state tuition assistance for religious schools, and could decide take up other religious freedom cases.

Although the court usually decides death penalty cases on the “emergency docket” - reserved for urgent petitions outside the formal appeals process - the court will hear arguments in the case of a Texas death row inmate this term on its “merits” docket. The court recently halted the execution of Texas death row inmate John Henry Ramirez in order to consider his case; Ramirez is requesting his pastor be allowed to lay hands on him and pray out loud as he is executed by the state.

Current policy of the Texas Department of Criminal Justice allows Ramirez’s pastor to be present with him in the execution chamber, but without physical contact or audible prayer as he is dying.

Prisoners ought to have the time-honored practice of clergy visitation and prayer at their time of execution, said Mark Rienzi, president of The Becket Fund for Religious Liberty, on a call with reporters last week. Becket filed an amicus brief at the Supreme Court in support of Ramirez’s case.

At a “bare minimum,” Rienzi said, the state ought to let an inmate have prayer and comfort of clergy as he is being executed.

The Supreme Court will also hear arguments in Carson v. Makin, involving Maine’s policy barring public tuition assistance for religious schools.

For Maine students who do not have a local public school, the state provides tuition assistance for them to attend another school of their choice. They may not, however, use the assistance for attending a “sectarian” school. The case before the court involves a challenge to the state’s policy, pushing for the state assistance to be allowed for religious schools as well.

The Supreme Court justices have “repeatedly” come together in defense of religious freedom in such cases, Rienzi said.

Perhaps the most notable Supreme Court case this fall is Dobbs v. Jackson Women’s Health Organization, regarding Mississippi’s law restricting most abortions after 15 weeks. The court is considering the question of whether all state bans on pre-viability abortions are illegal.

Although Becket is not representing the plaintiffs or defendants in the case, it filed an amicus brief at the court explaining the impact of legal abortion on religious organizations.

When the court previously struck down state bans and regulations of abortion, those rulings “amped up the [abortion] controversy beyond what it may have been otherwise,” Rienzi argued, and supplanted the political process of settling differences on abortion at the state level.

As a result, numerous “proxy” fights have ensued in the courts, he said, with states or federal administrations forcing employers – including religious employers – to provide coverage of abortions or abortifacients in employee health plans. Becket is asking the court to consider the effects of its abortion rulings on religious groups who are facing such abortion mandates.

The Supreme Court’s upcoming fall term might be notable not only for the religious freedom cases on the docket, but also for the pending cases the court might accept or refuse in the coming days.

The Catholic dioceses of Albany and Ogdensburg, as well as other Catholic and Christian ministries, have appealed to the Supreme Court for relief from New York state’s 2017 abortion coverage mandate. The state had required employers to provide abortion coverage in health insurance for employees, but the plaintiffs argue that they “can’t in good conscience” buy an insurance policy for someone else covering the killing of a child, Rienzi said.

While the state crafted a religious exemption for some employers, “it’s an awfully stingy and, I think, illegally stingy” exemption, Rienzi said. Only religious employers which employ and serve members of the same creed could be eligible for an exemption.

“They drafted a religious exemption that Jesus Christ himself would fail,” Rienzi said. “It prefers a very, very narrow subset of religious groups.” The Supreme Court will decide later this month whether or not it will hear the case of Diocese of Albany v. Lacewell.

In another case, the California-based Dignity Catholic health system was sued for refusing to provide a sex-change operation. The court could soon decide whether it will take up the case this term, Rienzi said.

There are several other religious freedom cases where “cert petitions” have been filed, or requests for the court to take up a particular case.

In one case of Kennedy v. Bremerton School District, a high school football coach in Washington state was fired for silently taking a knee and praying after games. He has appealed his case to the Supreme Court for a second time.

In the case of Seattle Union Gospel Mission, a faith-based homeless ministry is arguing it should be able to hire only employees of faith; the ministry faces a lawsuit from a man claiming the mission refused to hire him upon hearing he was in a same-sex relationship.

After a years-long court battle, the Little Sisters of the Poor gained relief from a federal contraceptive mandate when the Supreme Court upheld the sisters’ religious exemption to the mandate in 2020. That case, however, could be reignited if the Biden administration acts to remove the sisters’ religious exemption to the mandate.

“The case that never ends,” Rienzi quipped of the Little Sisters’ case, which is currently on hold in California and Pennsylvania. The Biden administration has asked judges for more time to act, but has not revealed any actions it might take.

“I think it’s pretty clear that the Biden administration has no place to go,” Rienzi said.  The Obama administration – which first issued the mandate – “was never able to win this in court,” he said.

“The law has actually improved on religious liberty since then. I don’t think there’s actually a path for the Biden admin to revive the contraceptive mandate successfully,” he said.

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