Faith in the public square: US Supreme Court decisions impact religious principles, freedom

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By Cheryl Magness

Recent rulings from the U.S. Supreme Court, some supportive of religious freedom and some not, are drawing the attention of churches and other faith-based nonprofits, including The Lutheran Church—Missouri Synod (LCMS). Synod leaders have been closely following the rulings and their potential impact on Christians’ free exercise of their religion.

Bostock v. Clayton County

On June 15, in a 6-3 decision, the U.S. Supreme Court ruled that Title VII’s prohibition of employment discrimination on the basis of “race, color, religion, sex, or national origin” — part of the Civil Rights Act of 1964 — also applies to discrimination on the basis of “sexual orientation” and “gender identity.” Justice Brett Kavanaugh dissented, asserting that the Court went beyond its proper role of interpreting the law and, in changing a definition to include meanings the U.S. Congress has rejected multiple times, rewrote the law. This is a “transgression of the Constitution’s separation of powers,” Kavanaugh wrote.

Justices Samuel Alito and Clarence Thomas also dissented, stating, “There is only one word for what the Court has done today: legislation.”

The Rev. Dr. Gregory Seltz, executive director of the Lutheran Center for Religious Liberty (LCRL), called the ruling “outrageous” in its relegation of “Christian citizens to second-class status in their own country.”

“[The church] is always accused of imposing our view on people, and it’s exactly the opposite,” Seltz said, adding that “the fundamental truths of biological differences … have just been made illegal” if they are held to, by an organization, as the single correct view.

The Rev. Jonathan Lange, editor of the Synod’s Free to Be Faithful newsletter, noted that the ruling could have widespread implications not only for the church but for the culture: “Among the questions left unanswered are whether men’s access to women’s dressing rooms and sports leagues will be mandated … [whether] female students and women escaping from domestic violence will be forced to share dorm rooms and living quarters with men,” and whether doctors might be sued for refusing to operate on or remove healthy sex organs.

June Medical Services LLC v. Russo

On June 29, in a 5-4 decision, the Supreme Court ruled unconstitutional a Louisiana law requiring that medical personnel who perform abortions at clinics have admitting privileges at a nearby hospital.

Justice Stephen Breyer wrote the majority opinion, which said that the Louisiana law was almost identical to a Texas law that was ruled unconstitutional in 2016. Although Chief Justice John Roberts had dissented with the 2016 decision, he concurred with the 2020 one, writing, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

March for Life President Jeanne Mancini said the organization was “appalled” by the decision.

“The legislation at issue in June Medical Services v. Russo was designed to safeguard women’s health and safety, which the abortion business in Louisiana egregiously sidelined for the sake of profit. No abortion facility should receive a free pass to provide substandard care.”

Deaconess Tiffany Manor, director of LCMS Life Ministry, said, “As Christians, we feel profound disappointment in the June v. Russo ruling. It is clear that we, the people who serve in LCMS Life Ministry, have much to do. We pray. We live out our vocations in the family and as citizens in society. We love and serve our neighbors with tangible acts of mercy.

“We pray the words of Psalm 121, ‘I lift up my eyes to the hills. From where does my help come? My help comes from the Lord, who made heaven and earth.’ He provides the help we need and never disappoints.”

Espinoza v. Montana Department of Revenue

On June 30, in a 5-4 vote, the Supreme Court upheld a tax credit for private schools in Montana. The Montana Supreme Court had struck down the program, arguing that it violated the state’s ban on state aid to religious schools.

Chief Justice John Roberts wrote the majority opinion, which said, “A state need not subsidize private education, but once it decides to do so, it cannot disqualify some private schools because they are religious.”

The ruling calls into question the constitutionality of many current state restrictions on using public funds for religious schools. Many of these restrictions can be traced to the 19th century, when U.S. Representative James Blaine of Maine proposed an amendment to the U.S. Constitution prohibiting any state funds raised for public schools to be “under the control of any religious sect” or “divided between religious sects or denominations.”

The Blaine Amendment failed ratification, but many states put similar “Blaine” provisions into their state constitutions. The full impact of the Espinoza decision will not be known for years, but it could open up additional funding paths for religious schools and widen the range of educational choices to which parents have access by making it more difficult for states to discriminate against religious schools in matters of funding.

Sue Nahmensen, CEO of the St. Louis-based Lutheran Elementary School Association (LESA), an LCMS Recognized Service Organization, described the Espinoza ruling as a “victory for families who deserve the right to choose the best educational system for their children, and for the educators in faith-based schools who are committed to preparing children for whatever their futures may hold — academically, emotionally and spiritually. … [LESA] believes this ruling will have a positive impact on educational opportunities for children and families in our community.”

Dr. Rebecca Schmidt, director of LCMS School Ministry, agreed, describing the ruling as “a momentous decision … [which] opens the doors for future children to hear the Gospel message.”

Little Sisters of the Poor v. Pennsylvania

On July 8, in a 7-2 decision, the Court ruled that the federal government acted legally in creating exemptions to the 2010 Affordable Care Act’s (ACA) contraception mandate for employers whose moral and religious principles preclude the providing of contraception. The ACA requires employers to provide cost-free coverage for contraceptives, sterilizations and “emergency birth control” in employee health plans.

In 2017, the Trump administration granted a religious and moral exemption to the mandate for employers that object to it on the basis of conscience, including the Little Sisters of the Poor, an international congregation of Roman Catholic women that serves the elderly poor in over 30 countries around the world. Several states filed lawsuits claiming that the administration had violated the Administrative Procedure Act in setting up the exemption, but the Court concluded that the administration had not acted improperly.

Justice Clarence Thomas wrote, in the majority opinion, “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. … But for the past seven years, they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns — the administratively imposed contraceptive mandate.”

Justices Samuel Alito and Neil Gorsuch wrote a concurring opinion arguing that the court should have also ruled that the Religious Freedom Restoration Act (RFRA) requires the challenged religious exemption to the contraception mandate and that, by not doing so, the court “will prolong the legal battle in which the Little Sisters have now been engaged for seven years — even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.”

Seltz applauded the ruling, calling it “mind-boggling” that the Little Sisters had to go through almost 10 years of litigation to be able to follow their conscience, “especially when it’s a conscience built on serving, caring and a humility that we all could emulate.”

Manor said she was thankful for the ruling, but added, “The concerning aspect … is that it allows for future presidents’ administrations to revoke the exemptions currently granted. Christians will need to continue to be active in the public square, professing the faith clearly and winsomely.”

Our Lady of Guadalupe School v. Agnes Morrissey-Berru and St. James School v. Darryl Biel

On July 8, the Supreme Court ruled 7-2 in favor of two religious schools that had been sued by former teachers. The teachers claimed the schools had discriminated against them when their employment was terminated, but the schools held that the terminations were protected under the “ministerial exception” granted to religious employers.

In the majority opinion, Justice Samuel Alito wrote, “The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Eric Rassbach, legal counsel for the schools and attorney for Becket, a religious liberty advocacy group, said, “Today is a huge win for religious schools of all faith traditions. … The last thing government officials should do is decide who is authorized to teach Catholicism to Catholics or Judaism to Jews. We are glad the Court has resoundingly reaffirmed that churches and synagogues, not government, control who teaches kids about God.”

Seltz noted that the case was undergirded by the 2012 Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Opportunity Employment Commission, which involved an LCMS school in Detroit.

“One of the reasons we get involved in these kinds of issues is so that we can protect our voice in the culture,” Seltz said. “We have to learn to speak the truth of God’s Word in love, with humility and graciousness. That means we’ve got to study our Bibles more than ever.

“We have to be wise as serpents and harmless as doves. We can’t keep walking into buzz saws. We have to use our First Amendment freedoms … so that we can boldly and joyfully proclaim the Good News of Jesus Christ without coercion and without fear.”

Find out more about the LCRL at lcrlfreedom.org, and watch weekly live liberty updates at facebook.com/lcrlfreedom.

Subscribe to the Synod’s Free to Be Faithful newsletter at lcms.org/free-to-be-faithful.

Follow LCMS Life Ministry at lcms.org/life.

Posted July 21, 2020