October 23, 2018
by John Kaempf

One or more of the following four religious freedom cases might be decided by the U.S. Supreme Court in the next year.

The U.S. Supreme Court is currently considering whether to exercise its discretion to accept the following four religious liberty cases for review. In the law, this is called a “petition for certiorari.” If at least four of the nine Justices agree to accept one or more of these cases, they will be decided by the full Court in the 2018-2019 term.

Patterson v. Walgreen Co. involves a Walgreens training instructor in Florida whose Seventhday Adventist religious beliefs do not permit him to work on Saturdays. He was fired by Walgreens after he refused to conduct an emergency work session on a Saturday. A federal appellate court, the 11th Circuit Court of Appeals based in Atlanta, ruled in favor of Walgreens on the ground that it had provided a “reasonable accommodation” by offering him other positions within the company. The church stated in a press release: “One of the Supreme Court’s primary jobs is to resolve these types of conflicts. The Supreme Court has not addressed the issues in this case since 1977 and 1986. With more than a 30-year silence on these issues and disagreements among lower courts, the Supreme Court is more likely to take his case.”

Morris County Board v. Freedom From Religion Foundation involves government funding of churches through historic preservation grants. The New Jersey Supreme Court ruled that such grants violate the New Jersey Constitution’s ban on aid to religion. Morris County is now asking the U.S. Supreme Court to decide whether the decision runs afoul of its ruling in Trinity Lutheran Church, which held that the First Amendment does not allow government entities to exclude churches or other religious entities from state grants for a non-religious use—like providing state money to improve a playground, the issue in that case.

R.G. and G.R. Funeral Homes v. EEOC is an employment discrimination case in which a transgender employee claims she was fired because of her change of gender identity. Her employer asserts that the firing is protected by the Religious Freedom Restoration Act “RFRA” because requiring it to allow the employee to present herself as a woman “substantially burdens” its religious beliefs. The federal Sixth Circuit Court of Appeals, based in Ohio, rejected the employer’s “substantial burden” argument and sided with the employee. Congress passed RFRA in 1993 to mandate a “compelling interest” test. This prohibits the government from creating restrictions on how you can practice your religion unless there is a “compelling state interest” for that restriction. It allows individuals to sue the government if they believe that their religious rights have been violated by the government.

A restriction on religious freedom serves a “compelling” state interest only if it is the “least prohibitive way” of achieving that compelling interest. RFRA provides that it “should not be understood to interpret the First Amendment in any way.” When deciding when and whether to accommodate religious practices under RFRA, plaintiffs first have to make a showing that their religion has been “substantially burdened.” The “substantiality” of a burden refers to the amount of pressure put on religious believers to give up or to alter their religious practice—and not on how much or what they have to change in that practice. In other words, it is mostly up to religious entities to show whether or not their religion is affected by the law in a “substantial” way. In City of Boerne v. Flores, the U.S. Supreme Court held in 1997 that RFRA applies only to federal laws. 21 states have enacted state RFRAs. These laws are very similar to the federal RFRA, but not necessarily identical.

Kennedy v. Bremerton School District is a school prayer case involving a football coach at a State of Washington public high school who had a practice of praying on the field with his team after games. The coach was placed on leave after refusing to abandon the practice. The federal 9th Circuit Court of Appeals, based in San Francisco, rejected the coach’s request for an injunction that would reinstate him. That court found that he was a public employee and not a private citizen on the field after games. Therefore, it held that the prayers violate the Establishment Clause of the First Amendment to the U.S. Constitution, which applies to the federal government and all states. It provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Stay tuned. These continue to be interesting times in the law concerning many issues important to people and institutions of faith.