The Daily - A Legal Winning Streak for Religion

Episode Date: April 14, 2021

In a ruling a few days ago, the Supreme Court lifted coronavirus restrictions imposed by California on religious services held in private homes. The decision gave religious Americans another win against government rules that they say infringe on their freedom to worship.With the latest victory, the question has become whether the Supreme Court’s majority is protecting the rights of the faithful or giving them favorable treatment.Guest: Adam Liptak, who covers the Supreme Court for The Times.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: Late Friday night, the Supreme Court lifted California’s restrictions on religious gatherings in private homes. The order followed earlier ones striking down limits on attendance at houses of worship.A study that considered data from the past 70 years found that the Supreme Court had become far more likely to rule in favor of religious rights in recent years.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, in a new ruling, the Supreme Court has given religious Americans their latest victory against government rules that the court says infringe on religious freedom. But as legal victories accumulate for the religious, the question has become whether the Supreme Court's majority is protecting the rights of the faithful or giving them preference. I spoke with my colleague, Supreme Court reporter Adam Liptak.

It's Wednesday, April 14th. Adam, tell me about this Supreme Court ruling that was handed down a few days ago. So it's Friday night. It's about 1130 at night. I'm just about to go to bed and I get a call from the public information office at the court that the court has just handed down a ruling, which is, I'd like to say it's unusual, but it's happening more and more these late night, Friday night rulings. And the court says that by a five to four vote, it's lifted restrictions imposed by California on religious services held in private homes. And explain that decision and the case that led to it. Well, California has a bunch of COVID restrictions meant to thwart the spread of the pandemic.

One of them limits private gatherings in private homes to no more than three households. A couple of people who wanted to hold Bible study groups and prayer meetings in their private homes for more than three households challenge this restriction, saying it violates their constitutional right to the free exercise of religion. And when they say free exercise, what they mean is the constitutional protection in the First Amendment that prohibits the government from interfering with the free exercise of religion with the ability of people to pursue their religious beliefs and practices. And the court agrees. And what was the court's reasoning in letting those who want to gather for prayer in homes do so? The court's reasoning was essentially that these folks were being treated worse than other folks. Now, it's true that on its face, this restriction applied to all kinds of private gatherings,

whether it's a Super Bowl party or a book group or a Bible study class, it applied to all private gatherings. But the court says that's not the right way to ask the question. Is religion being treated worse than anything in any way comparable? And the court says we have to cast the net more broadly. And other things are comparable. You know, the supermarket is comparable. The tanning salon is comparable. The manicure shop is comparable. The bowling alley are comparable. You know, the supermarket is comparable. The tanning salon is comparable. The manicure shop is comparable.

The bowling alley is comparable. And because there are no similar limits in those settings, the court says the free exercise rights of the folks who want to do religious gatherings in their homes had been violated. Got it. So in this ruling, a majority of the justices find that when it comes to a rule restricting everyone's ability to gather at home, the gathering of religious people who want to get together and pray in their homes should be treated differently based on protections of religion in the U.S. Constitution. So that's exactly right. That captures what the majority said.

The dissent takes a different view. The dissent says, listen, this law applies equally to religion and non-religion. The right way to think about it is, does it restrict religious people who want to gather in their homes more than non-religious people who want to gather in their homes?

The answer to that is no. And the majority is hunting around and stretching matters to try to find things to compare these home gatherings to, and it doesn't make sense. So in dissent, Justice Elena Kagan says it's not the job of the court to compare apples to watermelons. Got it. By which she meant you can't compare people gathering at home to pray with supermarkets. Right, right.

And Adam, why does this ruling, which on its surface seems kind of small, right? Home gatherings in a single one of our 50 states. Why does it matter? Well, it matters for at least two reasons, Michael. One is it's an instance of an incredible winning streak for claims of religious liberty before this Supreme Court. So it's one of many. But it's one of many that has been undermining a principle the court announced in 1990 that neutral laws of general applicability apply to religion and everybody else. And I know that's a bit of jargon,

but what it means is if there's a law that says everyone has to pay taxes, if you have a religious objection to paying taxes, tough luck. It's a neutral law of general applicability. If there's a law that targets or singles out religion, sure, that deserves constitutional protection. But a law that applies to everybody equally is constitutional. Got it.

So where does that 1990 principle that laws should apply neutrally to all, including religious people, where exactly does that come from? We'll hear our argument next, number 88-1213, Employment Division... It comes from a case called Employment Division v. Smith. Does the Free Exercise Clause require every state to exempt the religious peyote use by the Native American church? Or perhaps even beyond that... And the question in the case was whether Native Americans who had taken peyote as part of a religious ceremony were exempt from a law that barred illegal drug use. They contend that a religious motivation for engaging in legally prohibited action places the citizen beyond the reach of a law that is not specifically directed at his religious practice and that is conceitedly constitutional as applied to others. And the Supreme Court, in a decision by Justice Antonin Scalia, a conservative justice, articulates the principle that we have been living

with for many decades. That an individual's religious beliefs do not exclude him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. compliance with an otherwise valid law, prohibiting conduct that the state is free to regulate. So you don't get an exception just because you have a religious objection. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs contradicts both constitutional tradition and common sense. Now, a law that actually targets religion,

that disadvantages religion by design, completely different question. But laws that apply to everybody are constitutional, even if they interfere with some aspect of religious practice. Right. For example, a law like a COVID restriction in California saying no one can gather in their homes if there are more than three households, that would, under this principle, be considered neutrally applicable to everyone. It would look like a classic example of that. That's right. And it's guided the court until quite recently when there seems to be now a quite successful move to undermine it. And when did that successful move to undermine it start to experience this success that you mentioned?

So it's been accelerating, and particularly since Chief Justice John Roberts joined the court in 2005, but I'd say in the past couple years, the court has found a way to chip away at, undermine, hollow out the principle so that religious groups get special favoritism. For example, in the last term, the term that ended in July, there were three major religion cases the religious group wins every time. One question was if states give tax benefits to private schools, do they have to give them also to religious schools? I mean, this is a case about money and the question of whether or not it must go to religious schools. Answer, yes. Another question was, do religious schools, do Catholic

schools have an exemption from employment discrimination laws? So you're asking for an exemption to the Family and Medical Leave Act, to all sorts of laws. And the answer is yes. The religious group gets to set its own internal rules. And finally, can religious employers opt out of the Obamacare contraception mandate requiring them to provide free contraception coverage to female workers? I'm talking about exempting a secular employee of a church from receiving the contraceptive

coverage. The answer to that, more or less, was yes. So at the end of the last term, religious liberty is doing great. It's on a winning streak, with one exception. In cases involving state restrictions on religious gatherings to combat the pandemic, the court has been sustaining those restrictions, saying that the government, even at the expense of impinging on religious liberty, has the right to protect public health. But that changes after Justice Ruth Bader Ginsburg dies in September,

is replaced by Justice Amy Coney Barrett, and what had been five, four decisions in one direction, sustaining these restrictions, all of a sudden become five, four decisions in the opposite direction, where the religious groups start to win, where the court says they have a constitutional right to gather in houses of worship and now in private homes, notwithstanding the public health interest on the other side. So Adam, where does that winning streak end up leaving the Supreme Court on this question of religious liberty and this principle that laws should be neutrally applied? The Supreme Court has figured out a way to undermine

but not overthrow that principle. And the way it does it is to say, if any secular activity is treated better than religion, then religion must also be treated the same. And it's a very rare regulation that doesn't have an exception for something. And so long as you have an exception for something, the court is now saying religion also has to get that same exception. Got it. So if something is granted to anyone, it must also be

granted to people of religion. Right. And the practical impact of that is to give claims of religious liberty special force and to give religious people and groups a kind of privileged status. Right. Which is, by definition, not neutrality. It's preference. Right.

And maybe that's right. I mean, you know, this 1990 rule may or may not be correct. But what we know for sure is that the new rule is different. We'll be right back. Adam, why are these religious liberty cases so important to religious groups? What is wrong with a world in which the law, as Justice Antonin Scalia articulated it, that the law apply as neutrally to the religious as it does to the non-religious. And therefore, what's the legal and religious logic

of bringing these cases to the Supreme Court? This is part of a societal split. Americans have become less religious over time. Religious Americans have dug in and feel aggrieved that mainstream culture and developments in legislatures and at the Supreme Court, notably in the 2015 decision establishing a constitutional right to same-sex marriage, has left them out. And not only that, but kind of marginalized them and caricatured them as bigots when they're not on board for advances, as progressives would see it, in gay rights, transgender rights, access to contraception, and so on.

So this is a legal fight, but also a culture wars fight. The member of the court I associate most with the position that religion needs special protection these days is Justice Samuel Alito. I am very pleased to have this opportunity to speak to all of you who are attending the Federalist Society's annual Lawyers' Convention via the Internet. George W. Bush appointee joins the court in 2006, both in his writings and his public comments, and notably in a speech he gave back in November to the Federalist Society, the conservative legal group. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.

He really sketches out how the court needs to be doing more in this area because he says religious liberty is under assault. Take the protracted campaign against the Little Sisters of the Poor. He lists a bunch of cases in which he says religious people had been powerfully mistreated, notably the Little Sisters of the Poor, an order of Catholic nuns that didn't want to provide contraception coverage to its workers, but also... Jack Phillips, the owner of the now notorious Masterpiece Cake Shop. A cake baker in Colorado who refused to bake a cake for a same-sex couple. A pharmacy called Ralph's was owned by a Christian family.

And a pharmacist who didn't want to fulfill some contraceptive prescriptions. A great many Americans disagree, sometimes quite strongly, with the religious beliefs of the Little Sisters, the owners of Ralph's, and Jack Phillips. And of course, they have a perfect right to do so. That is not the question. The question we face is whether our society will be inclusive enough to tolerate people

with unpopular religious beliefs. So all of these people, he says, have been marginalized. They will risk being labeled as bigots and treated as such by governments, employers, and schools. Cast out of polite society merely for trying to follow their faith. Consider where things stood in the 1990s, when a Supreme Court decision called... And he suggests it's as a consequence

of this 1990 decision, which requires people to knuckle under, he would say, to neutral laws of general applicability. For all Americans, standing up for our Constitution and our freedom is work that lies ahead. And he goes on to say that the law should carve out space for religious people not to have to support and participate in things that violate their conscience. But when we meet next year, I hope we will be able to say that progress was made. Until then, I wish you all the best.

Thank you. But of course, that raises a fundamental question about religion in a democracy, which is who should have to make accommodations in a society, the religious person or the secular society. And if I'm a gay couple that walks into that bakery not accommodating me, not making a cake for my wedding, that sure looks like bias and bigotry, and it looks like illegal discrimination. But if I'm the religious owner of that bakery, forcing me to bake that cake may feel anti-religious. It may feel like a legal impingement on my faith, government telling me to violate my deeply held beliefs. So this becomes a very complicated question of who's supposed to make the sacrifice.

Right. And these two sets of values may not be able to be accommodated. It may be that one has to win and one has to lose. And at the risk of repeating myself, the Constitution does protect the free exercise of religion. And it means something. Whether it means quite as much as what the majority on the Supreme Court now says, that's the battleground we're now fighting on. Mm-hmm. Adam, from what you've said, almost all these religious liberty cases have stemmed from this sense that religious people are being trampled by secular law. by secular law and that the majority of Americans are essentially imposing a will on a minority of Americans. That seems to be the dynamic. But given the volume of victories at the Supreme Court that you have just described, it no longer perhaps feels like this is about a small group of people under attack seeking mere carve-outs

and exemptions, is this now potentially a moment in American legal history where religious people in the eyes of the law are actually starting to be truly preferred by the law? And does that then undermine the argument that religion and religious people are under attack? Yeah, so it's a curious part of the Alito speech where he says in some quarters, religious liberty is no longer a favored right. And I'm not sure what quarters he's talking about, but I know what quarters he's not talking about, which is the Supreme Court.

In the Supreme Court, as you say, Michael, religious groups, and let's face it, particularly Christian religious groups, have achieved really a special status. So the notion that religious people are under attack is in real tension, at least at the court. Maybe in other aspects of society, at least at the court. Maybe in other aspects of society, Justice Alito is right. But at the court, the story is the opposite of the one

he tells. At the court, the story is of a triumphant series of huge victories for religion. So Adam, given that, what is the next chapter in this legal debate at the Supreme Court over religious liberty? Well, we have one big religion case this term. The case involves Philadelphia's foster care system. The city runs it. It contracts with private groups to screen potential foster parents. private groups to screen potential foster parents. Catholic charities have long participated in this program, but the contract they have to sign with the city says you can't discriminate based on sexual orientation. You have to allow same-sex couples to participate. And the Catholic charities say, no, thank you. We want to participate, but we'd like to rewrite the contract because we have a religious objection to same-sex couples serving as foster parents. And at the argument, the court went down the same road we've been talking about.

Are there exceptions that apply in other settings? Does the city sometimes take account of, say, race in whom it's going to place children with in the best interest of the child? And the suggestion from some of the conservative justices was, well, once you have some exception, you have to give an exception to the Catholic charity also. So you have this same dynamic we've been talking about. And if they rule, as I expect they will, for the Catholic Charities,

the court could do one of two things. It could overrule the 1990 case entirely. It's been asked to do that. That's part of the case. That could happen. Or it could say, as soon as anybody gets an exception, the Catholic Charities have to get an exception too. And because of the way the foster care program is set up, somebody somewhere is going to get an exception to something. And therefore, the 1990 decision remains in place in name.

But it's been recharacterized, recast, and hollowed out to such an extent that it almost doesn't matter. And either way, under either rationale, what we end up with is that religion and religious groups under this Supreme Court will have achieved a very special status in American society and law. Thank you, Adam. We appreciate it. Thank you, Michael. We'll be right back.

Here's what else you need to know today. This morning, the FDA and CDC announced that out of an abundance of caution, we're recommending a pause in the use of the Johnson & Johnson COVID-19 vaccine. On Tuesday, two key U.S. health agencies called for a temporary suspension of COVID-19 vaccinations using Johnson & Johnson's single-shot dose after receiving reports of six cases in which recipients of the vaccine developed severe blood clots. Right now, I'd like to stress, these events appear to be extremely rare. However, COVID-19 vaccine safety is a top priority for the federal government,

and we take all reports of adverse events following vaccination very seriously. The six cases, out of nearly 7 million doses administered, all occurred in women within about two weeks of vaccination. After the announcement, many states immediately followed the federal guidance and said they would pause injection of Johnson & Johnson's vaccine, one of three COVID vaccines authorized for emergency use in the U.S. And President Biden has decided to withdraw all American troops from Afghanistan by September 11, 20 years after terrorist attacks on the World Trade Center and the Pentagon

prompted the U.S. to declare war on the Taliban. That timetable extends the deadline proposed by President Trump, who had sought to withdraw the troops by May 1st. Finally, the white police officer in Brooklyn Center, Minnesota, who fatally shot Dante Wright, an unarmed 20-year-old Black man, has resigned, as has the city's police chief. The officer, Kim Potter, said she was leaving the force after 26 years, quote, in the best interest of the community. Today's episode was produced by Austin Mitchell, Robert Jimison, and Daniel Guimet.

It was edited by Dave Shaw and engineered by Chris Wood. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.