The U.S. Supreme Court announced June 28 it would not rule on cases that offered it the prospect of strengthening religious freedom or providing clarity on transgender rights in schools.
The justices declined to accept a petition by an Idaho construction worker regarding the state’s refusal to accommodate his religious beliefs. In the case, the Southern Baptist Ethics & Religious Liberty Commission (ERLC) had joined other religious organizations in a friend-of-the-court brief that urged the high court to reconsider a three-decade-old decision they say subverted the free exercise of religion.
The Supreme Court also declined to review a decision that required a Virginia school district to enable a female student who identifies as male to use the boys’ restroom. The ERLC and other organizations had earlier urged the justices to reverse a lower court or “unleash conflicts over religious liberty resembling the conflicts over same-sex marriage” and potentially marginalize people of faith.
The ERLC expressed regret at the actions.
“We are disappointed that the justices declined to take up these cases that offered meaningful opportunities to bring constitutional clarity to important religious liberty questions,” said Daniel Patterson, the ERLC’s acting president. “Nonetheless, we will remain tireless in our efforts to speak into cases that protect religious liberty and uphold the sanctity of human life precisely because we do this work in service to Christ, who rejoices in life and human flourishing.
“At the same time, we remain thankful to see how the Supreme Court’s unanimous decision in Fulton earlier this term strengthens the foundations of our nation’s First Freedom,” Patterson told Baptist Press in written comments.
In their June 17 Fulton v. City of Philadelphia opinion, the justices upheld a faith-based adoption and foster-care agency’s right to carry out its ministry according to its beliefs by agreeing Philadelphia, Pa., violated the First Amendment’s protection of the free exercise of religion by refusing to contract with Catholic Social Services (CSS) for foster-care placement. The city halted referrals to the agency because CSS does not place children with same-sex couples based on its beliefs about marriage and sexuality.
In the appeal from Idaho, George Ricks, a longtime construction worker, filed suit against the Idaho Contractors Board because it declined to accommodate his religious belief that he should not provide his social security number to register as an independent contractor. He was willing to provide his birth certificate and other forms of identification, but the board required his social security number, according to Becket, a religious liberty organization that represented him. The Idaho Supreme Court refused to accept his case, resulting in Ricks’ request of a ruling by the country’s highest court.
In their 2019 brief in support of Ricks, the ERLC and five other religious organizations called for the Supreme Court to correct its 1990 Employment Division v. Smith opinion, which they described as “an unwelcome revolution” in its decision-making regarding religious free exercise.
While the First Amendment bars Congress from passing a law that prohibits the free exercise of religion, the high court’s 1990 ruling altered the way the clause has been interpreted. The Supreme Court ruled the Constitution does not require an accommodation for free exercise of religion in the case of a neutral law that is generally applicable to the public.
Before the Smith ruling, the Supreme Court “consistently applied the Free Exercise Clause to protect religious practice from any substantial government interference that could not be justified by a compelling state interest,” according to the brief by the ERLC and others. Since that decision, the result in many circumstances has been that Smith “effectively stripped the Free Exercise Clause of constitutional force,” the brief said.
The Smith opinion, according to the brief, has resulted in a lack of protection for religious freedom in such areas as dress and grooming requirements for religious minorities, zoning restrictions on churches and limitations on religious practice by churches and other religious bodies.
Joining the ERLC on the brief were the General Conference of Seventh-Day Adventists, Church of God in Christ, Church of Jesus Christ of Latter-Day Saints, Lutheran Church-Missouri Synod and Union of Orthodox Jewish Congregations of America.
In announcing its decision not to review a case involving a Virginia transgender student, the Supreme Court said Associate Justices Clarence Thomas and Samuel Alito would have granted review of a ruling by the Fourth Circuit Court of Appeals in Richmond. The appeals court agreed with a federal judge in ruling the Gloucester County School Board in eastern Virginia violated Title IX and the 14th Amendment’s Equal Protection Clause by refusing to permit a high school student who is a female biologically but identifies as a male to use the boys’ restroom.
The school district had provided a separate restroom for the student who brought suit, but she said being forced to use the alternative restroom further stigmatized her. She underwent hormone therapy, legally changed her name to a male name – Gavin Grimm — and asked to be treated as a male before her sophomore year of high school in 2014.
In January 2017, the ERLC and five other faith-based organizations asked the Supreme Court in a friend-of-the-court brief to reverse a Fourth Circuit opinion that the ban on sex discrimination in the 1972 Title IX education amendments includes gender identity. Joining the ERLC on the brief were the National Association of Evangelicals, U.S. Conference of Catholic Bishops, Union of Orthodox Jewish Congregations of America, The Church of Jesus Christ of Latter-day Saints, The Lutheran Church-Missouri Synod and Christian Legal Society.
The ERLC and the other signers of the brief said their faiths and other religious traditions believe “a person’s identity as male or female is created by God and immutable.”
“Not surprisingly, then, interpreting ‘sex’ to include gender identity would create thorny conflicts between federal civil rights law and widely held religious beliefs,” according to the brief. “[R]eligious Americans could find themselves increasingly marginalized for believing that gender is immutable and divinely ordained.”
The Supreme Court vacated the appeals court decision in March 2017, about three weeks before the justices were to hear oral arguments in the case. The high court’s action came after the Trump administration reversed an Obama-era policy that said Title IX encompasses gender identity – a stance the Biden administration also has adopted. The case ultimately returned to federal court and the Fourth Circuit.
When the school board sought Supreme Court review in the latest appeal, the ERLC and its allies chose not to submit a new brief, content with their arguments in the previous filing while maintaining the same position.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)