“Religion and the Courts in the 21st Century”

by The Hon. Diarmuid F. O’Scannlain
United States Circuit Judge for the Ninth Circuit
Board of Governors Retreat
Thomas Aquinas College
October 28, 2017

Chairman Turicchi, President McLean, Board members, and friends of Thomas Aquinas College.1 Thank you for that kind introduction. It is an honor to be asked to speak at this Board of Governors retreat, which includes so many distinguished participants and which offers a chance to be reunited with some old friends, as well. It is especially an honor for me to be invited to participate in this evening’s dinner as the Board pursues its critical mission of stewarding one of the world’s preeminent Catholic institutions of higher education. I am a product, and lifelong supporter, of Catholic education — as my pocketbook, unfortunately, can attest — and it is a source of great pride and joy for me to be among those continuing its important legacy in these often trying times in 21st century America.

I

A

I’ve been asked to speak about the fate of religion in the courts in the 21st century, a topic to which I will turn momentarily. But, first, I would like to pause to observe that the clashes over religious freedom which I will discuss are hardly confined to the courtroom. The role of religion in public life is, dare I say, of urgent current concern. We’re all familiar with the recent battles: the religious organization’s struggle not to be forced to subsidize healthcare treatments it finds to be morally abhorrent, the local baker’s or florist’s or photographer’s fight not to participate in a wedding that contravenes his or her religious beliefs on marriage, the school’s policy to tell its students which bathrooms they may use. The debates are pervasive, and I am struck by their strident — often, quite nasty — tone. Perhaps I shouldn’t be. As disagreements over religious freedom increasingly focus on sensitive social issues like same-sex marriage or gay rights, they tend to represent, for many, mere proxies for the deeply personal “culture wars” that have come to define our politics. Professor Paul Horwitz recently observed in Commonweal that debates over religious freedom in America have grown bitter to reflect “the sense of fierce conflict … in a wider world that is often indifferent or even hostile to religion.”2 In Professor Horwitz’s telling, once cordial debates have now splintered into two perhaps intractable camps: “one focused on religion, the other on equality — [each] competing to set the terms of engagement preemptively.”3

So we see these fights play out anywhere there is political ground to be gained: in newspapers and on TV screens, in statehouses, and of course, in our courts. It is all but impossible to get a sense as to which side is “winning” (insofar as there is even a coherent dispute to be won); each side can cite recent political “victories” across the country. But much, certainly, is happening within American society today.

B

The bitterness of our current religious-freedom debates struck particularly close to home for me, as a federal judge, just a couple months ago during the Senate Judiciary Committee hearing over the nomination of Notre Dame Law Professor Amy Barrett to the Seventh Circuit Court of Appeals. In years past, the confirmation hearing of a United States Circuit Court judge would pass with little fanfare; for instance, my own hearing in 1986 lasted less than half an hour and even the minority Senators were cordial. One would have hoped that Professor Barrett — who is undeniably qualified for the bench — would have been treated similarly. Alas, notwithstanding her sterling credentials and impeccable reputation, Professor Barrett appears to have committed a grave sin in these anti- religious times: she is, proudly and publicly, a devout Catholic. I am, too, of course, as are many other federal judges, but most of us had the good fortune to come onto the bench at a time when our identity as such was not deemed worthy of front-page news.

In 2017, however, Professor’s Barrett’s Catholicism seems to have touched a nerve. The minority Senators on the Judiciary Committee pressed Professor Barrett relentlessly about her faith, many of them expressing fear that her religious beliefs would influence her decisions on the bench (notwithstanding her repeated and emphatic insistence that they would not). Senator Dick Durbin criticized Professor Barret for using the term “orthodox Catholic” in one of her earliest academic articles and asked her to tell the Committee whether she considered herself to qualify as such.4 Your own Senator Dianne Feinstein was even more feisty in expressing her fear that Professor Barrett is really, truly, a Catholic, bemoaning, “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”5

I am happy to report that those Senators’ disgraceful treatment of Professor Barrett did not escape the country’s attention and that a number of prominent individuals came to her defense.6 Her nomination has since passed out of the Judiciary Committee on a party-line vote, and one would hope she will shortly be confirmed to her new post by the full Senate, notwithstanding what she had to endure during the Committee hearing. But this episode remains troubling. The obvious implication in the Judiciary Committee’s treatment of Professor Barrett is that, in matters of politics and public life, sincere religious believers ought not to apply. As I have spoken and written about many times before, I couldn’t disagree more with that sentiment, and I am alarmed that a growing segment of our country seems to tolerate it.

C

I do not, I am sorry to say, have a good answer for how people of faith might reverse the growing hostility to their views and to their ways of living. My message, to which I will return at the end, is not to shrink in the face of the opposition, but to continue to live fully and faithfully in public. And, in the meantime, we must remember that the Founders of our country enshrined in the United States Constitution a critical backstop against the sort of anti-religious fervor that we may now be experiencing: the First Amendment of the United States Constitution which protects our “freedom of speech,” which prohibits the government from establishing a religion, and which promises to secure our own “free exercise” of religion.7

Which brings us to the topic at hand. How have religious liberty claims been faring in the courts and what might that say about the outlook for free exercise in the 21st Century?

II

The last few years have been a time of great activity, with mixed success, for religious claimants in the courts. Three cases in particular stand out as likely to shape religious-liberty law for the foreseeable future.

A

Just a few years ago, in 2014, advocates for religious freedom won a major victory at the Supreme Court in Burwell v. Hobby Lobby Stores, Inc.8 In Hobby Lobby, the Supreme Court held that the U.S. Department of Health and Human Services could not impose its “contraceptive mandate” — requiring that employers provide their employees health-insurance coverage for a wide variety of contraceptive services — on three corporations, whose owners held sincere religious objections to several such contraceptive methods.9 On its facts, the decision was, as the court described, “very specific”: it applied only to closely held corporations, it pertained only to the specific contraceptive mandate at issue, and it was brought under the Religious Freedom and Restoration Act — a statute providing additional religious-freedom protections as applied to actions undertaken by the federal government — rather than the Constitution itself (which, of course, would apply to the actions of both state and federal governments).10 But, to many, the Hobby Lobby decision nonetheless signaled a major victory for religious liberty and for the freedom not to be compelled to participate in what one viewed to be a moral evil. Indeed, it was regarded as a sign of more success to come for advocates arguing for similar religiously based exemptions.11

As it stands today, Hobby Lobby remains a critical, if somewhat ill-defined, pillar of the Court’s religious-freedom jurisprudence. States have continued to press religiously affiliated organizations to participate to varying degrees in objectionable programs, and sometimes with success in the courts.12 Just last term, the Supreme Court punted on a case that stood to test — and perhaps to expand — the limits of the Hobby Lobby decision, in which several religious organizations challenged a supposed work-around that the prior administration had devised to provide contraceptive coverage to the employees of such organizations.13 Since then, several of the groups challenging the latest version of the contraceptive mandate — including, deo gratias, your own college — successfully settled their cases and received exemptions from the mandate from the new presidential administration.14 But, with the Supreme Court ultimately declining to weigh in on the merits of the case, lower courts still remain divided about exactly what sort of accommodations must be provided to religious believers in the wake of Hobby Lobby. One expects that this issue will, before too long, return to the Supreme Court again.

B

The very next year after Hobby Lobby, the Court issued another landmark decision, this one a decidedly darker omen for the future of religious liberty. In Obergefell v. Hodges,15 a five-Justice majority of the Court held that the United States Constitution includes a fundamental right to same-sex marriage. For those, like myself, who subscribe to an originalist understanding of our Constitution, this was a startling proclamation of an unenumerated — and previously unheard of — right, and it was a bold assertion of power for a federal court to step into and to decide such a hotly contested political issue for the nation at large. But, aside from the specific outcome of the case, what was especially striking was the majority’s treatment of the conflict between the newly asserted right to same-sex marriage and the First Amendment rights of those who oppose such a practice on the basis of religion. The majority opinion acknowledged that marriage is “sacred to those who live by their religions,” and that same-sex marriage clashes with many religious beliefs.16 But the majority held that no State may itself adopt such “sincere, personal opposition” to same-sex marriage.17 The Court theorized that the First Amendment continues to protect believers’ rights to “teach the principles” of their faith and to “engage those who disagree with their view in an open and searching debate,” but the Court left unspoken what remaining freedoms people of faith may have left to object to the institution of same-sex marriage beyond simply speaking against it. 18

The widespread response was: What does Obergefell prescribe for the future of religious liberty in America? Concern over the majority’s treatment of such question resounded throughout the dissenting opinions. The Chief Justice wrote that “people of faith can take no comfort in the treatment they receive from the majority today”;19 Justice Thomas warned that “the majority’s decision threatens the religious liberty [that] our Nation has long sought to protect”;20 and Justice Alito warned that the majority’s opinion “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”21 Public reaction was much the same. The day the opinion came down, Rod Dreher, senior editor at The American Conservative, wrote that “[i]t is hard to overstate … the seriousness of the challenges [the decision] presents to orthodox Christians.”22 Notre Dame Law Professor Gerard Bradley wrote that the Court’s decision would “inaugurate the greatest crisis of religious liberty in American history.”23 Many on the other side of the debate shared — indeed celebrated — these same intuitions; perhaps most famously, two days after the Obergefell decision was announced, Time published an online column by Mark Oppenheimer declaring, “Now’s the Time to End Tax Exemptions for Religious Institutions.”24

Courts have only begun to scratch the surface of what Obergefell might mean for individuals’ freedom to resist — on religious grounds — the new right to same-sex marriage. Indeed, this current term, the Supreme Court is set to decide its first case squarely presenting such a question (and which is already being hailed as a potential landmark): Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Court will consider the constitutionality of a Colorado anti-discrimination law which purports to require a small bakery owner to bake a custom wedding cake for a same-sex marriage to which he religiously objects.25

The so-called “gay wedding cake case” might well prove to be the biggest and most inflammatory religious-freedom decision yet, at least as a matter of public perception. The case touches the core of what seems to animate so many recent debates: the right of a religious believer to reject publicly some aspect of modern progressivism’s anti-discrimination ethos. It presents to the Supreme Court the first of what were expected to be many clashes of these two ideals following Obergefell. Regardless of result, if I were to give a similar talk next year, this case would, I am sure, factor prominently.

C

This past summer, the Court issued yet another major religious liberty decision — and this time one that again suggests a brighter future for religious liberty. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held — by a 7-2 majority — that Missouri could not exclude churches from participating in a program through which the State awarded reimbursement grants to nonprofit organizations to upgrade their playground surfaces.26 The decision, again, is tied to its narrow facts, with the Court going so far as to include a cryptic and much- discussed footnote that declares, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”27

But the Court’s decision may nonetheless represent a major victory for religious-liberty claimants in at least two ways.

First, the Court affirmed the “basic principle” that the First Amendment “protect[s] religious observers against unequal treatment.”28 Though the Court’s particular application of such principle in Trinity Lutheran was factually narrow, the opinion itself represents a potentially significant protection for religious believers. For example, many have asked whether the Court’s decision might eventually spell doom for the so-called “Blaine Amendments” adopted by many states, which broadly prohibit the states from directing public money to religious entities or uses.29 These provisions have long drawn the ire of religious believers, not least because, as Notre Dame law professor and religious freedom scholar Rick Garnett has put it, many “reflect — significantly, even if to varying degrees — the anti-Catholicism, nativism, and nationalism of the 19th and early 20th centuries.”30

In Trinity Lutheran, the Court struck down one application of Missouri’s own Blaine Amendment, though without making any reference to its sordid history; it remains to be seen what this means for other applications of similar provisions.

Relatedly, the Court’s decision in Trinity Lutheran curtailed one of the Court’s earlier and, in my view, more pernicious religious liberty decisions: Locke v. Davey, in which the Court upheld the State of Washington’s decision to exclude from a generic college-scholarship program a student who sought to pursue a degree in devotional theology.31 In Trinity Lutheran, the Court distinguished Locke by explaining that, while a State may have some leeway to deny funding that will be used for a specific religious purpose, it may not deny a generally available benefit to a person or organization merely because of its religious identity.32 Although some have questioned the “stability” of the distinction between religious “uses” and religious “identity,”33 the majority’s dividing line represents a potentially significant restriction on States’ ability to prescribe disparate benefits for otherwise similar religious and non-religious entities. Indeed, in dissent, Justice Sotomayor complained that the majority’s decision “recasts Locke” and that a “faithful reading of Locke [would] give[] it a broader reach.”34 Exactly how much that “broader reach” of Locke has been limited remains, of course, to be seen.

Much as Obergefell controlled the perception for the future of religious liberty in the summer of 2015, and Hobby Lobby the year before that, the prognosis for future religious-liberty claims in courts today may rest largely on what one perceives to be the lasting impact of the Trinity Lutheran decision. Indeed, the reactions to Trinity Lutheran from those who oppose a broader right to religious freedom resemble the alarmist tone and dismay of the reactions of the faithful to the Obergefell decision two years ago. In her strident dissent, Justice Sotomayor (joined by Justice Ginsburg) proclaimed that the Court in Trinity Lutheran had “dismantle[d]” the First Amendment’s prohibition against the government’s establishment of a religion and “leads us … to a place where the separation of church and state is a constitutional slogan, not a constitutional commitment.”35 The day after the decision came out, Slate published an editorial echoing Justice Sotomayor’s concerns, opining that the decision “threatens to obliterate the divide between church and state” and to give “religious exercise primacy over laws of general applicability.”36

But, while the latest major Supreme Court decision might appear favorable to a broad conception of the right to free exercise of religion, we know that it will not be the last. Like Hobby Lobby and Obergefell, Trinity Lutheran is a decision that touches on several important principles for religious freedom but which, at least factually, is itself quite narrow. Rather than provide a clear sign of things to come, Trinity Lutheran mostly provokes more questions to be answered. Thus, while the decision may stand, as First Amendment scholar Eugene Volokh describes, as a “powerful precedent for equal treatment for religious institutions,”37 the many contours of that precedent are yet to be carved through future cases. As Professor Rick Garnett recently put it, “future cases involving official discrimination against religious entities, practices, and beliefs … will almost certainly involve more difficult and divisive facts,” and how exactly the Court’s opinion will apply in such cases “is a crucial and coming-soon question.”38

Thus, I caution you: do not mistake the Supreme Court’s latest religious freedom decision to be a sure sign of its next. Courts have only just begun to apply Trinity Lutheran and are already arriving at divergent results.39 It is far from clear, to me at least, where a consensus on this issue might eventually land, and we know that the next “big” religious liberty case is often just around the corner. We therefore ought to exercise caution before assuming too much about what is to come.

III

I want to leave you with a message similar to one I delivered two years ago in the wake of Obergefell, at the annual Red Mass celebration in Milwaukee. That message is: do not let the relative recent success — or lack thereof — of religious liberty claims deter you from continuing to pursue your crucial mission of engaging publicly with your faith and advocating for religious values in the public square. In the immediate aftermath of the case, I acknowledged that “the future for religious liberty following Obergefell looks bleak,” but I noted that the Court had only “foreclosed one area of fierce political debate,” and that “its decision cannot deny the worth of those who would disagree, and the Court did not drive their voices from the public arena.”40 I encouraged the attendees not to shrink in the face of the setback that Obergefell appeared to be; if our right to religious freedom “is going to have enduring force, people of faith must continue to engage politically and must continue to fight for respect and acceptance of religious traditions.”41 I want you to carry that same message today.

Your college does critical work, perhaps now more than ever in the face of an American society that is losing its support for — I fear even its tolerance of — religion and those who sincerely practice it. Your work might become harder or more expensive given the direction of the law or of a certain court decision. But it doesn’t lose its importance. As a citizen and a Catholic I support emphatically what you’re doing here; as a judge, I remind you that what courts interpret to be the law is only one aspect of public life. We, of course, must all respect and follow the law, including courts’ interpretations of it; but even where the result of a particular case is not on your side, do not lose sight of the rest. As the Vatican’s Congregation for the Doctrine of the Faith has exhorted us Christians, do not “relinquish [your] participation” in the political and public spheres, but instead continue “to seek the truth with sincerity and to promote and defend, by legitimate means, moral truths concerning society, justice, freedom, [and] respect for human life.”42 I commend Thomas Aquinas College for doing exactly that, and my humble entreaty is that you continue to do so undeterred by the ebbs and flows of our broader society’s taste for religious life.

Thank you, and may God bless you in your work.

1. The views expressed herein are my own, and do not necessarily reflect the views of my colleagues or of the United States Court of Appeals. I wish to acknowledge, with thanks, the assistance of John Meiser, my law clerk, in preparing these remarks.
2.  Paul Horwitz, Both Sides Have Their Reasons, COMMONWEAL, Oct. 4, 2017, https://www.commonwealmagazine.org/both-sides-have-their-reasons.
3. Id.
4. See Alexandra DeSanctis, Dianne Feinstein Attacks Judicial Nominee’s Catholic Faith, NATIONAL REVIEW, Sept. 6, 2017, http://www.nationalreview.com/corner/451137/dianne-feinstein-amy-coney-barrett-senator-attacks-catholic-judicial-nominee.
5. Id. (emphasis added).
6. See, e.g., Press Release, Princeton University, President Eisgruber Asks Senate Committee to Avoid ‘Religious Test’ in Judicial Appointments, Sept. 8, 2017, https://www.princeton.edu/news/2017/09/08/president-eisgruber-asks- senate-committee-avoid-religious-test-judicial; Letter from Rev. John I. Jenkins, C.S.C., President, Univ. of Notre Dame, to Sen. Dianne Feinstein, Sept. 9, 2017, https://news.nd.edu/news/letter-from-rev-john-i-jenkins-csc-to-us-sen-di... feinstein/; Sohrab Ahmari, The Dogma of Dianne Feinstein, N.Y. TIMES, Sept. 11, 2017.
7. U.S. CONST. amend. I.
8. 134 S. Ct. 2751 (2014).
9. Id. at 2759.
10. Id. at 2759–60.
11. See, e.g., id. at 2787 (Ginsburg, J., dissenting) (“In a decision of startling breadth, the Court holds that commercial enterprises … can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”); Adam Liptak, Supreme Court Rejects Contraceptives Mandate for Some Corporations, N.Y. TIMES, June 30, 2014 (describing the opinion as a “nominally incremental ruling[] with vast potential for great change); Patrick Caldwell, Supreme Court Broadens Hobby Lobby Ruling to All Forms of Birth Control, MOTHER JONES, Jul. 3, 2014, http://www.motherjones.com/politics/2014/07/ supreme-court-scotus-hobby-lobby-all-forms-contraception/ (“[T]he case has opened the way for a broad swath of businesses to object to any government regulation they dislike based on the religious whims of corporate owners.”).
12. See, e.g., Real Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs.,867 F.3d 338, 355–66 (3d Cir. 2017) (requiring employee to participate in group health care plan that includes contraceptive coverage does not substantially burden his religious exercise); Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) (Washington state rule requiring religiously affiliated pharmacies to provide emergency contraceptives did not violate Constitution).
13. See Zubik v. Burwell, 136 S. Ct. 1557 (2016).
14. See Press Release, Thomas Aquinas College, College Wins Permanent Protection from HHS Contraceptive Mandate, Oct. 16, 2017, https://thomas aquinas.edu/news/college-wins-permanent-protection-hhs-contraceptive-mandate.
15. 135 S. Ct. 2584 (2015).
16. Id. at 2594, 2602.
17. Id. at 2602.
18. Id. at 2607.
19. Id. at 2625–26 (Roberts, C.J., dissenting).
20. Id. at 2638 (Thomas, J., dissenting).
21. Id. at 2642 (Alito, J., dissenting).
22. Rod Dreher, Orthodox Christians Must Now Learn to Live as Exiles in Our Own Country, TIME, June 26, 20155, http://time.com/3938050/orthodox-christians-must-now-learn-to-live-as-exiles-in-our-own-country.
23. Symposium, The Supreme Court Has Legalized Same-Sex Marriage: Now What?, NATIONAL REVIEW, June 27, 2015, http://www.nationalreview.com/ article/420420/supreme-court-has-legalized-same-sex-marriage-now-what-nro- symposium.
24. Mark Oppenheimer, Now’s the Time to End Tax Exemptions for Religious Institutions, TIME, June 28, 2015, http://time.com/3939143/nows-the-time-to-end- tax-exemptions-for-religious-institutions.
25. See Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, No. 16-111 (S. Ct. 2017).
26. 137 S. Ct. 2012, 2024–25 (2017).
27. Id. at 2024 n.3.
28. Id. at 2019 (internal quotation marks omitted).
29. See, e.g., Eric Fehnstrom, Ruling Against Blaine Amendments is a Victory for Liberty, BOSTON GLOBE, July 6, 2017; Christian Sagers, How the Supreme Court’s Trinity Lutheran Decision Could Affect Anti-Religious Laws, THE FEDERALIST, June 26, 2017; Valerie Strauss, Will the Supreme Court’s Trinity Decision Lead to the Spread of School Voucher Programs?, WASH. POST, June 26, 2017.
30. Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, CATO SUPREME COURT REVIEW, 2016–2017, at 105, 108.
31. 540 U.S. 712 (2004).
32. 137 S. Ct. at 2023–24.
33. See id. at 2026–27 (Gorsuch, J., dissenting).
34. Id. at 2039 (Sotomayor, J., dissenting).
35. Id. at 2041.
36. Perry Grossman & Mark Joseph Stern, Goodbye, Establishment Clause, SLATE, June 27, 2017, http://www.slate.com/articles/news_and_politics/ jurisprudence/2017/06/trinity_lutheran_threatens_to_obliterate_the_divide_betwee n_church_and_state.html
37. Eugene Volokh, When may the government discriminate against religious institutions?, THE VOLOKH CONSPIRACY, June 26, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/26/when... discriminate-against-religious-institutions.
38. Garnett & Blais, supra note 30, at 130.
39. Compare, e.g., Ill. Bible Colls. Ass’n v. Anderson, 870 F.3d 631 (7th Cir. 2017) (upholding imposition of certain accreditation requirements on degree- granting religious colleges), with Taylor v. Town of Cabot, No. 2016-276, 2017 WL 4454708, at *7–8 (Vt. Oct. 6, 2017) (suggesting that Vermont Blaine Amendment may not likely be invoked to oppose municipal grant to fund repairs to a historic church).
40. Diarmuid F. O’Scannlain, The Supreme Court and the Future of Religion in the Public Square, MARQUETTE LAWYER, Summer 2016, at 53, 55–56.
41. Id. at 57.
42. Congregation for the Doctrine of the Faith, Doctrinal Note on Some Questions Regarding The Participation of Catholics in Political Life (Nov. 24, 2002).