As designed by the Constitution’s framers and interpreted by the Supreme Court for more than two centuries, the Free Exercise Clause of the First Amendment has served as a shield to protect people’s religious free exercise from substantial burdens by government. The same was true for the Religious Freedom Restoration Act (RFRA), which provided similar statutory protection when Congress passed the legislation in 1991.
Under the Roberts Court, however, the Court began to turn this shield into a sword that enables religious adherents to deny people’s rights in the name of religion, including in the high-profile 2014 Hobby Lobby decision. And during its 2019-2020 term, the Court continued to misinterpret the Free Exercise Clause with that result.
In the Hobby Lobby case, the majority ruled that even a for-profit business could rely on RFRA to refuse to provide contraceptive coverage to employees as required by the Affordable Care Act (ACA). As Justice Ginsburg explained in dissent, the result is to allow employers to use religious beliefs to “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.” Ginsburg also pointed out that the ruling contradicted the principle previously accepted by the Supreme Court, including in an opinion by conservative former Chief Justice Warren Burger, that “[a]ccommodations to religious beliefs or observances” must “not significantly impinge on the interests of third parties.” With respect to free exercise as with free speech claims, she observed (quoting a free speech scholar), your “right to swing your arms freely ends just where the other man’s nose begins.”
The Hobby Lobby ruling created new possibilities for businesses to deny reproductive health care. In 2017, the Trump administration enacted a rule that effectively expanded the Hobby Lobby decision and provided that virtually any employer could opt out of the ACA contraceptive coverage requirement on religious or moral grounds. A lower court had ruled that the agency that promulgated the rule did not have the authority to do so and issued an injunction against it. But in July 2020, in the Little Sisters of the Poor decision, the five most conservative members of the Supreme Court ruled that the agency did have the authority to promulgate the rules and lifted the injunction, based in part on their view that the ACA “contraceptive mandate” conflicted with RFRA.
Justices Ginsburg and Sotomayor explained in dissent that the majority opinion ignored the “balanced approach” that the Court had previously taken that “does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.” Instead, the dissent went on, “for the first time” the majority opinion “casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” As a result, they lamented, “between 70,500 and 136,400 women” could lose access to contraception under the ACA if the rule is upheld after further proceedings in the courts.
The Supreme Court also used free exercise as a sword against public education during the 2019-2020 term. In late June, a 5-4 majority ruled that it constituted discrimination under the Free Exercise Clause for Montana to not fund tuition tax credits for religious schools in Espinoza v. Montana, even though the state’s constitution explicitly forbids funding of religious schools. The majority argued that since Montana had enacted a program that provided such aid to non-religious private schools, it had to include religious schools as well. But as Justices Ginsburg and Kagan pointed out in dissent, the state supreme court had struck down the program as applied to both religious and non-religious schools, so there was no unequal treatment. More broadly, Justices Breyer and Kagan explained, although the Establishment Clause may not forbid a state from providing aid to religious schools, past precedent makes clear that the Free Exercise Clause “does not require it to do so” when the state is concerned that “taxpayer-supported supported religious indoctrination poses a threat to individual liberty.”
Justice Sotomayor was even more blunt. The majority ruling was “perverse,” she explained, because it adopts a “new theory” under which it is somehow a burden on free exercise to not provide funds to a religious institution, which for years was considered unconstitutional under the Establishment Clause. As one commentator has pointed out, the result may well be that the Free Exercise Clause will force taxpayers in many states to fund “overtly religious education” including the “indoctrination of children into a faith that might clash with their own conscience,” such as religious schools that “inculcate students with a virulent anti-LGBTQ ideology.”
Finally, the Court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru endangers people’s rights in religious workplaces. In that ruling, the majority held that two religious schools were exempt from federal laws banning discrimination based on age and disability when they fired lay teachers. The majority did this by expanding the so-called “ministerial exception” and ruling that, based on the Free Exercise Clause, laws forbidding job discrimination cannot be applied to religious schools or other institutions when they “select, supervise,” and “remove” any employee who “serves as a messenger or teacher of its faith.”
Although the majority ruled that courts should determine which employees qualify and not necessarily defer to the church or religious institution, as urged by Justices Gorsuch and Thomas, Justices Sotomayor and Ginsburg’s dissent pointed out that the decision allows such institutions to strip legal protection from all employees who it “thinks” play an “important religious role.” The result, they warned, is that the Free Exercise Clause authorizes religious institutions to “discriminate widely and with impunity” against “over a hundred thousand secular teachers” and many others based on “race, sex, pregnancy, age, disability, or other traits protected by law.” This includes LGBTQ status despite the Court’s recent decision on that issue.
If more extreme right-wing justices join the Court as a result of nominations by Trump, it could enable religious adherents to cause even more damage to Americans’ rights. Trump-appointed Justice Gorsuch wanted the Court to rule that RFRA requires the contraceptive exemption permitted in Little Sisters and would even require state aid for explicitly religious activities, like learning to become a minister.
We cannot know with certainty how the Court will rule in the future. But the Court’s 2020 decisions have already turned the Free Exercise Clause into a sword for religious adherents to harm others’ rights, rather than a shield to protect religious liberty.