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    THE LEGAL BATTLE FOR LIBERTY

    Recent Supreme Court victories hold off challenges to the free exercise of religion

    by Tim Saccoccia 9/1/2020
    A man participates in a religious freedom rally organized by Knights of Columbus in Austin, Texas, in 2015. Photo by Pu Ying Huang

    The U.S. Supreme Court heard more than 60 cases in its 2019-2020 term, including several that dealt directly with the Catholic Church’s ability to teach, live and evangelize the faith.

    Some of the fundamental issues under debate would have been familiar to Father Michael McGivney, who founded the Knights of Columbus, in part, to counteract the anti-Catholic nativist movements of the late 19th century. In fact, one of the recent Supreme Court cases revolved around legislation passed during Father McGivney’s lifetime.

    For more than a century, the Order has stood against attempts to relegate Catholic education and culture to second-class status. In the 1920s, the Knights were instrumental in the legal fight against an Oregon statute that required all children to attend public school. More recently, the Order has partnered with the Becket Fund for Religious Liberty to defend the words “under God” in the Pledge of Allegiance, protect public displays of faith, and fight other challenges to the First Amendment right to exercise one’s religion freely.

    The following three cases serve as a reminder of this history and ongoing work.

    Espinoza v. Montana Department of Revenue
    In 1875, U.S. House Speaker James Blaine proposed legislation that would ban public funding at religious — primarily Catholic — schools, which were viewed by many nativist Americans as “prisons of the youthful intellect of the country.” The federal amendment was narrowly defeated, but in the years following, 37 states, including Montana, adopted “Blaine amendments” in their own constitutions.

    In 2015, Montana began granting a small tax credit to taxpayers who donated to a state-approved, privately funded scholarship program for students attending private schools. However, the state Department of Revenue determined that under Montana law, the program could not award scholarships to anyone attending a religious school.

    The Montana Supreme Court agreed, but the U.S. Supreme Court reversed the decision June 30. The Court ruled 5-4 that Montana was in error, stating that it is a violation of the First Amendment to bar someone from receiving a public good on the basis of religion. The Court did not strike down Blaine amendments, but it did set the tone that these provisions unfairly target people for their faith.

    Little Sisters of the Poor v. Pennsylvania
    Since 2013, the Little Sisters of the Poor have been fighting the Affordable Care Act’s requirement that they fund contraceptives, sterilization and abortifacients for employees at their homes for the elderly poor. After the Court ruled unanimously in their favor in 2016, the government created an exemption to the health plan requirement for religious ministries. This case was a challenge to that exemption, and the Knights of Columbus again assisted the Little Sisters’ defense and filed an amicus curiae (friend of the court) brief in support.

    On July 8, the Supreme Court issued a 7-2 decision in favor of the Little Sisters. The Court did not address the mandate itself but confirmed that the government has the authority to issue broad religious and moral exemptions to it.

    Our Lady of Guadalupe School v. Morrissey-Berru
    On the same day the Court ruled in favor of the Little Sisters, it also ruled 7-2 in favor of two Catholic schools in the Archdiocese of Los Angeles.

    These schools were sued by former teachers after the schools declined to renew their contracts, citing failure to meet performance standards. Both teachers taught religion and had responsibility for preparing students for the sacraments. In its decision, the Court cited the “ministerial exception,” which allows a faith community to determine who is responsible for conveying its message and carrying out its mission.

    Importantly, the decision clarified when the ministerial exception applies. “What matters, at bottom, is what an employee does,” Justice Samuel Alito wrote in the majority opinion. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

    ****

    Each of these decisions represents a positive step toward protecting religious liberty. Nonetheless, legal challenges will persist wherever policies favor an overly broad application of the Establishment Clause of the First Amendment — “Congress shall make no law respecting an establishment of religion.”

    Justice Clarence Thomas addressed this balance in his concurring opinion in Espinoza: “Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”

    ****

    TIM SACCOCCIA, past state deputy of the District of Columbia, is senior policy director for the Knights of Columbus.

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