The Supreme Court has seen a number of religious freedom cases so far in 2021. In a 5-4 ruling in Tandon v. Newsom, the high court struck down COVID-related restrictions on group religious activities in private homes. Also, in Fulton v. Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, SCOTUS ruled that the city of Philadelphia violated the First Amendment when it froze the contract of the Catholic Foster Care Agency.
So, did the addition of Justice Amy Coney Barrett impact these religious freedom cases? Do these decisions set any sort of precedent for future cases? On Lawyer 2 Lawyer, host Craig Williams is joined by Professor Jim Oleske from Lewis & Clark Law School, to discuss SCOTUS & religious freedom, focusing on the shadow docket, the rulings stemming from COVID restrictions, and the impact these rulings will have on future cases centered around religion.
Jim Oleske: What does that mean for people who believe there should be a very strict separation of church and state? I think they’re going to continue to be disappointed by this court. This court is going to allow religious practices and interrelation between government and religion that strict separationists will object to and I think that will continue for the foreseeable future.
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J Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I wrote a legal blog named, “May It Please the Court.” I have two books out titled “How to Get Sued” and “The Sled.” Well, the Supreme Court has seen a number of religious freedom cases so far in 2021. Recent religious rulings include Tandon versus Newsom and Fulton versus Philadelphia, two important religious freedom cases. So, did the addition of Justice Amy Coney Barrett impact these religious freedom cases to these decisions set any sort of precedent for future cases? Today on Lawyer 2 Lawyer, we’ll be discussing SCOTUS and religious freedom focusing on the shadow docket, the ruling stemming from COVID restrictions and the impact that these rulings will have on future cases centered around religion and to do that we’ve got a great show for you today. Our guest is Professor Jim Oleske from Lewis & Clark Law School. Prior to joining Lewis & Clark in 2011, Jim served as the Chief of Staff of the White House Office of Legislative Affairs during the first two years of the Obama administration. Professor Oleske was the 2014 recipient of the Leo Levenson Award for excellence in teaching and his research focuses on the intersection of religious liberty and other constitutional values. From January through June of 2019, he conducted research in the United Kingdom as a Fulbright scholar at Cardiff University’s Center for Law and Religion. Welcome to the show, Jim.
Jim Oleske: It’s wonderful to be with you today. Thank you for having me.
J Craig Williams: Jim, there’s been an awful lot of developments in the first amendment right of free speech and practice of religion in our Bill of Rights. What is the kind of general status of things at this point? Where is the Supreme Court sitting in terms of its view of the impact of COVID on religious freedom cases and the impact of — let’s just talk about contracts maybe too.
Jim Oleske: So, it’s been a remarkable year plus since the pandemic hit for the Supreme Court’s development of its religious freedom jurisprudence. As you mentioned there’s also some very big free speech issues. Sometimes cases will involve both free exercise religion claim and a free speech claim. This week the court has issued big decisions in both areas. But going back to your specific question about COVID, COVID really accelerated the court’s consideration of some of its big outstanding religious liberty questions because of the various state restrictions that were put on people gathering together and because obviously worship services involve people coming together to gather, there were restrictions on worship, and so a number of places of worship brought lawsuits during the pandemic challenging those restrictions and one of the grounds on which they would do so would be to say this restriction interferes with our free exercise of religion . So the lower courts worked through many, many, many cases. The Supreme Court last summer, actually late spring, end of May last year, I heard its first case or considered, I should say, its first case and it’s had about six or seven cases that it is addressed on emergency basis between then and this past April in which it’s addressed this issue and along the way and we can talk more about this, the direction of the court and the way in which it approached these cases changed but the short of it is we got some pretty significant new law out of these COVID cases and one question going forward is that law going to be sort of unique to the COVID context or will it inform more broadly the court’s religious liberty jurisprudence.
J Craig Williams: Well let’s go back to talking about those COVID cases because I’m having a hard time justifying Employment Division versus Smith Peyote case with the current set of cases on the freedom of religion. It seems to me that they’re not reconcilable.
Jim Oleske: So, a number of people have taken that view. So, just for the audience members out there who may not be familiar with Employment Division versus Smith, the case that Craig referenced, this is a case that held, but generally speaking, there’s no right to religious exemptions from laws that are neutral and generally applicable. So famously in that case, there was a law prohibiting the use of controlled substances, members of the Native American church, who used Peyote a controlled substance for sacramental purposes the court said didn’t have a right to religious exemption from the law.
They had to follow it the same as someone who might be using Peyote for non-religious reasons. That was a pretty big change at the time of Smith. Prior to Smith, the court for almost 30 years had recognized the right to religious exemptions. But again in Smith, the court said no right to religious exemptions. So, you might think and I think this is what Craig’s getting at during the COVID era, these regulations that states were passing these limits. They applied to gatherings both religious and non-religious and so you might think under Smith, it might burden religion, it might burden these places of worships to be subject to these limits on gatherings, but they have to follow them just like any other gathering would have to follow them. But in fact, in a number of cases, most recently the Tandon versus Newsom case out of California in April, the court actually ruled in favor of the religious claimants and said that these restrictions in many instances could not be applied to religion.
And so then the question is, okay well, how does that square with Smith? This gets complicated. Smith even though it changed the direction of free exercise law at the time declined to overrule any of the prior cases which seemed to go in the opposite direction; instead it distinguished those prior cases. So the game has become post-Smith in effort to try to fit into one of those so-called exceptions to Smith. Well, one of those so-called exceptions to Smith was if a law contains other exemptions, maybe there’s still a right to religious exemptions and it was very unclear how narrow or broad that exception to Smith was but the long and the short of it is that the COVID case, in the COVID case I should say, the supreme court ended up seeming to interpret that exception to Smith so broadly it probably swallows Smith. So back to your fundamental question, Craig, many of us would argue that the decision in Tandon versus Newsom, that is the last COVID case the court decided, really can’t be squared with Smith rather the court read an exception to Smith so broadly as to swallow the Smith rule.
J Craig Williams: And it’s a good springboard into the Fulton case because if you were talking about exemptions, wasn’t that one of the basis for the court’s ruling in Fulton.
Jim Oleske: It was. What’s a little bit puzzling, not puzzling but interesting I should say, about the Fulton decision is that even though Tandon, the last COVID case, seemed to be so broad as to swallow Smith, you might have expected the court in Fulton to talk about Tandon.
J Craig Williams: And just to be clear, Fulton is the gay rights case with the Catholic Social Services not certifying gay folks as foster parents, right?
Jim Oleske: Exactly. So, the City of Philadelphia has this non-discrimination requirement that prohibits sexual orientation discrimination. Catholic Social Services refuses to certify same-sex parents and so, Catholic Social Services lost its contract with Philadelphia and then they sued on religious liberty grounds. And so, one of the questions was would the court in Fulton which is — we should actually go back and mention all those COVID cases they were decided on an emergency basis, on emergency injunctive basis on the so-called shadow docket. So there was an oral argument in any of those cases. There wasn’t full briefing, there was some briefing, but not the full briefing you would expect in a case that is heard on the merits at the Supreme Court. Fulton by contrast, the foster care case, was a case heard on the merit. There’s oral argument back in November. I think almost 90 briefs were filed, both the party’s briefs and many, many friend-of-the-court briefs, so as full-blown arguments in Fulton. And so one question, would Fulton address what the court had already said in these COVID cases? The real interesting thing is that neither the majority opinion in Fulton nor Justice Barrett’s concurrence, nor Justice Alito’s concurrence even mentions Tandon, the last COVID case.
It’s kind of surprising if Tandon really was this big development that many of us thought it was, you would expect it to be addressed in Fulton, but they didn’t . Instead, they relied on — I mentioned earlier that there were exceptions to Smith and there was a debate over how narrow or broad those exceptions to Smith were. One of the undisputed exceptions to Smith was something called the individualized exemption rule. So if the government has a law that says people have to do X, but then it builds into the law a mechanism for a government official to make exceptions to the requirement to do X. That is a mechanism for individualized exemptions and the court back in Smith said if a law includes that mechanism for individualized exemptions sort of discretionary case-by-case exceptions, then you have to give religious exceptions because there’s a danger. If you give a government official the ability to grant exceptions but they deny religious exemptions, you can understand there might be a danger of discrimination against religion. And that’s the basis on which the court and Smith had distinguished an earlier case called Sherbert v. Verner.
So in Fulton, fast forwarding to the foster care case, the court said, hey, in its contract with Catholic Social Services, the City of Philadelphia has a provision that gives it, gives a city official the ability in her sole discretion to make exceptions to the non-discrimination requirement. Since you have that sole discretion, mechanism for individualized exemptions, you have to grant a religious exemption. So it was a very narrow basis on which the case was decided because as Justice Alito points out in great frustration in his concurrence and as Justice Gorsuch also points out in his concurrence, Philadelphia can just get rid of that sole discretion contractual provision then there will no longer be a mechanism for individualized exemptions, the exception to Smith doesn’t apply and so the general Smith rule which you have to follow generally applicable neutral law, here the non-discrimination requirement would seem to apply and then the court would have to reach the broader issues that it ducked in Fulton should it overrule Employment Division versus Smith.
J Craig Williams: And then the 64,000-dollar question becomes what is this going to do with Roe versus Wade?
Jim Oleske: To the extent when both cases were talking about potentially overruling landmark cases, you’re absolutely right, the court could have on its docket, next year it has on its docket the question of whether to overrule Roe v. Wade and as the court grants one of these sort of follow-up cases to Fulton, there’s several cases post-Fulton that are asking the court to overrule Employment Division versus Smith. It could have also on the docket a case in which it decides whether to overrule Employment Division versus Smith. Of course we’re talking about two different you know constitutional rights here where in one case free exercise and the other case substantive due process. But yes, we have two landmark constitutional law cases that potentially the court could be revisiting in the next year or two.
J Craig Williams: And what about what role does the shadow docket, I mean you described what it is that is basically abbreviated methodology to get cases decided without full briefing and without oral argument. What role do you think that’s going to play in the development of these religious freedom cases? I mean, there’s gloom and doom by the LGTB community saying, this means that we’re not going to get services anywhere.
Jim Oleske: Well, I think those concerns will continue to exist on the merits I don’t think there’s a high degree of risk that this issue is going to be resolved on the shadow docket in the future. That is to say we had all of these cases because of the pandemic involving limitations on gathering but I don’t foresee that going forward, the court is likely to continue having shadow docket cases on free exercise really. I mean, you try not to predict the future because none of us last January would have predicted the pandemic and all the COVID cases that they came out of it. But that said, those precedents that were decided on the shadow docket during the pandemic are going to have to be at some point addressed. So, the Tandon case, the last case, seemed to indicate, this very broad rule, that religious exemptions must be granted not only if there’s a mechanism for individualized exemptions but so long as the law has any categorical exemptions included in it. And since most laws have exemptions in them, if you say that well then there almost always will have to be religious exemptions effectively going back to your earlier point reversing Employment Division versus Smith is that really what Tandon means? Is the court going to interpret Tandon to mean that in the future? If it does that could have a huge impact on civil rights laws. But I think after Fulton, there’s reason to question whether the court’s going to due that. Justice Barrett’s concurrence really did seem to send a cautionary note that she’s not necessarily sold on applying strict scrutiny as a matter of course in religious exemption cases. She’s looking for an intermediate scrutiny approach which under which I think a lot more laws will survive and that includes civil rights laws.
J Craig Williams: I may have forgotten my constitutional law here. What’s necessary to devalue it to not strict scrutiny?
Jim Oleske: Well, since the whole tiers of scrutiny is nowhere in our constitution, it’s a doctrinal framework that the court has built over the years. It’s up to the court now. One distinction the court has made in a number of areas, in free speech law, in dormant commerce clause doctrine is it is sometimes distinguished between on the one hand purposeful targeting, so purposeful targeting of speech or purposeful targeting of interstate commerce and said if government is engaged in sort of purposeful targeting, well that’s subject to strict scrutiny . By contrast, if the government’s operating with a general law that’s not targeted but it incidentally burdens the thing at issues, so in the speech context, there’s a law that says no fires in the park.
Well, that’s not targeted speech, but someone who likes to burn flags in protest of the government in the park, well it’ll incidentally restrict their speech. Well, is that going to be subject to strict scrutiny that no fires in the park rule? No, the court’s not going to apply strict scrutiny because that law is not targeted at speech. But it still might apply an intermediate type of scrutiny. What’s known in the first amendment free speech context is O’Brien level scrutiny, to judge whether government can justify that incidental burden of applying that no fires in the park rule to the person who’s burning something in protest. So stepping back to the free exercise of religion context, might the court do something like that. Say, when the government’s targeting religion, so if the government said Catholics cannot use sacramental wine, well they’d apply strict scrutiny to that because that’s targeted at discriminating against Catholics. By contrast, if a state said we’re going to become a dry state, no alcohol at all. Well, that’s not targeted at religion but it has the same incidental impact on Catholics using sacramental wine, they can’t use it. What scrutiny is the court going to apply in that case? Well, they’re not going to apply strict scrutiny, at least under Smith they apply no scrutiny, but there’s an argument maybe they should apply some intermediate level scrutiny, require the government to show some justification for applying the ban to the sacramental use of wine.
J Craig Williams: Do you think that these decisions that have come up recently have created a most favored nation rule for religion that is that if there’s an exception there has to be an exception for religion I mean can we —
Jim Oleske: That’s absolutely what Tandon did, absolutely what Tandon did. The question is I think that in Tandon just to remind the listeners is the last of the COVID shadow docket cases. The question is will that be deemed to be unique to the emergency docket cases involving COVID that were decided before the court squarely addressed Smith and limited to that context or will it be applied going forward in cases on the merits and we just don’t know the answer and part of the reason we don’t know the answer is this. Let’s say the court in the future overrules Smith, and let’s say it does something like Justice Barrett’s sort of hinted at in her concurrence. It says we’re going to overrule Smith and we’re going to apply intermediate scrutiny in cases involving incidental burdens on religion when a neutral and generally applicable law incidentally burdens religion. What the court then might say about that most favored nation theory applied in Tandon, they might say that was a remnant of the Smith era and the exceptions to Smith that were carved out of it to justify prior precedent but now that we’ve overruled Smith, we’ve sort of wiped the slate clean and we don’t have to worry about Smith and the so-called exceptions to Smith, we’ve created a new rule going forward and again it’s intermediate scrutiny for incidental burdens on religion. I’m not saying the court will necessarily do that, but that’s one way it could move forward and sort of limit what it did in the COVID cases to just the context of those COVID cases.
J Craig Williams: Well, it seems like there’s been a big shift in respect to looking at state laws that have any restriction on them. Can we expect state laws in the future to simply have and create an exemption provision so that this triggers this automatic favored nation status?
Jim Oleske: Well, actually it’s a fascinating question and I want to say two things based off of that. One, it’s important to remind everybody that although we’ve been talking about whether there’s a constitutional right to religious exemptions, there are thousands and thousands and thousands of religious accommodations written into the law by policymakers. Policymakers often want to accommodate religion, whether it’s specific accommodations written in specific laws or whether it’s more general accommodation statutes like the religious freedom restoration act which has been adopted at the federal level and I think 22 states at this point. So, policymakers are often very solicitous of religion and deal with accommodations on the front end. What we’ve been talking about is cases where the policymakers haven’t done that and then a religious claimant says well, I have a constitutional right to an accommodation from the law or an exemption from the law but I think your more direct point might be, could you imagine policymakers who want there to be religious exemptions in the future to write in other exemptions to a law knowing that will trigger under the most favored nation theory, a religious exemption in the future. Possibly but if you had policy makers with that perspective, I wonder why they just wouldn’t write a religious exemption into the law in the first place.
J Craig Williams: Of course that makes perfect sense. Well, can we expect anything out of the kind of far end churches? If you look at the church of the flying spaghetti monster and the church of Satan and other things, do you think that these decisions would have come down the same way had we had the kind of fringe religions involved instead of Catholic religion?
Jim Oleske: Well, your reference to Satanism is an apt one because I believe there’s a case right now challenging an abortion restriction brought from a Satanist perspective and one of the things about that most favored nation theory that you referenced earlier and that the court applied in the Tandon case is you could imagine the most favored nation theory being invoked by abortion rights supporters. So imagine to go to another case you mentioned earlier that the Dobbs case in which the Supreme Court is going to be considering Roe v. Wade and whether to overturn Roe v. Wade. Let’s say the Supreme Court overturns Roe v wade and it says states can now ban abortion. They don’t have to ban abortion, but they can ban abortion and let’s say a state bans abortion in all cases except the wife of the woman or the health of the woman or maybe also they include an incest and rape exception. Then you have a woman who is getting an abortion and she says, I’ve consulted with my god and my god has told me I am not prepared to raise this child and so it’s my sincere religious belief that it would be wrong for me to have this child at this time and so I want to terminate my pregnancy.” And the state says, “No, we have a ban on abortion.” And she says, “No, most favored nation theory, you make exceptions for these other things. You have to make an exception for my religiously motivated abortion.” Now do we think the court would apply the most favored nation theory in that case? I think many people would be skeptical that this court would do so but you can see the potential complications of the most favored nation theory going forward and I think some religions wouldn’t just be the Satanist by the way, I think there are some mainstream, more mainstream religious beliefs that might inform a woman in those circumstances . So I think that issue could be on the table in in the future.
J Craig Williams: And how do you think the makeup of the Supreme Court has influenced these cases? I mean, we’ve seen relatively significant change in the number of justices that are considered conservative and loss of justices who are considered liberal.
Jim Oleske: Yeah, it’s really fascinating in the religious liberty free exercise context because we’ve had somewhat of a shift since the Smith case in 1990 that you referenced earlier. Back in the Smith case, it was the conservative justices who got rid of the right to religious exemptions. Justice Scalia wrote that decision. Chief Justice Rehnquist joined it and he along argued against the court’s exemption jurisprudence and it was some of the leading liberal justices on the court who are trying to preserve the right to religious exemptions, Justice Brennan, Justice Marshall, Justice Blackman. Today, however, it is perceived as a conservative cause to believe in a constitutional right to religious exemptions and liberals are perceived as more resisting that so kind of the flip from where we were with Smith and I think a lot of people attribute that to the political salience of the specific issues that have been involved in recent exemption cases, LGBTQ rights and abortion and contraception. So, does that inform this at the Supreme Court level? Well, it’s a little tricky because Justice Breyer is the justice considered one of the liberals who has been questioning Smith for the longest period of time. He wrote an opinion questioning Smith back in 1997 and so he’s been on record as questioning Smith for a very long time but then also the three most conservative justices on the court arguably, Justice Thomas, Justice Alito and Justice Gorsuch in Fulton this week wrote their opinions indicating that Smith should be overruled. So it’s more complicated I’d say on the court than it necessarily is in in the wider public discourse and again, I think that the two most recent conservative justices, Barrett and Kavanaugh surprised, I think, to some degree many people with a potentially more nuanced approach in the Barrett concurrence in Fulton.
J Craig Williams: How do you think we can see this going forward? Are we going to have a separation of church and state like we’ve seen in the past or you think that’s beginning to melt?
Jim Oleske: Well, that implicates — we haven’t talked much yet about the other religion clause, the establishment clause just as the free exercise jurisprudence has gone through a period of great transformation that we’ve been talking about the establishment clause which is typically viewed as the separation of church and state clause by many people but not all is the subject of great debate and there have been some big decisions in that area and I would expect more decisions to be coming. I do think generally speaking the current court is one that has a much narrower view of the establishment clause then did the court in the 1960s, 1970s and even in the 1980s.
The current court is not one that is going to find establishment clause violations as readily as did the court in the 60s and 70s and I think that trend is going to continue. So what does that mean for people who believe there should be a very strict separation of church and state? I think they’re going to continue to be disappointed by this court. This court is going to allow religious practices and interrelation between government and religion that strict separationists will object to and I think that will continue for the foreseeable future.
J Craig Williams: May be a bit off topic legally but there has been significant discussion recently regarding the Catholic bishops in the United States who have issued a doctrinal chastisement for President Biden about his view on abortion and there’s been a lot of people saying well, if the church is going to get involved in politics, this separation of church and state, then they should lose their non-profit status and they should be taxed. What’s the law on those issues?
Jim Oleske: Let me start with the latter and then work my way back to the bishops. So on the tax issue, the most famous case or one of the most famous cases in this area and the case that has been the subject of considerable discussion is the Bob Jones case and so for listeners who are not aware of this history, Bob Jones University is a university that due to its religious principles at one time banned interracial relationships among its students. In 1983, there was a case that went to the Supreme Court because the IRS had stripped Bob Jones of its tax-exempt status and that went to the Supreme Court and Bob Jones among other things argued we have a free exercise right to have this policy and keep our tax exempt status and the Supreme Court said “No. you can be stripped of your tax-exempt status. There’s a compelling interest in eradicating racial discrimination in the education field.”
Now, Bob Jones has never been extended outside of the race context. There’s been a lot of concern when the Supreme Court issued its decision, sort of vindicating a strong ban on sex discrimination, the Virginia Military Institute case in the 1990s. Justice Scalia in descent sent up a warning that this may implicate the tax status of schools that are single sex will they lose their tax-exempt status like Bob Jones did. And then in more recent years, as you’re probably aware, there’s been concern that if we treat LGBTQ discrimination as unlawful like we do sex discrimination and race discrimination, well, institutions that have policies prohibiting same-sex relationships may lose their tax exempt status. But I think one thing to keep in mind is that the IRS has never extended that policy beyond race, so it’s never stripped schools of their tax exempt status because of single sex policies and it’s never stripped schools of their tax-exempt status because of policies on same-sex relationships and my guess is if they tried to extend it for a variety of complicated reasons, we probably don’t have time to get into here, the court probably wouldn’t find that the IRS had that authority. There were unique reasons it found it had the authority to do so in the race context that I’m not inclined to think they would find it has the ability to do in these other contexts. That said, Congress could do it. Congress could pass a law saying that if you want to keep your tax-exempt status, you can’t discriminate on X, Y and Z grounds in addition to race grounds, but I don’t think there has been any indication that there is congressional will to do that.
Stepping back to your first question about the bishops, the only thing I’d like to add is that I saw that the bishops put out what some are viewing is a clarification Q and A document this week making it clear that they have not adopted any statement on any politician. Of course, everybody’s talking about the president but I think they’re more vague in their Q and A document. They have not made any statement about communion for any particular politician but rather they’ve only approved putting together a memo on the general importance of the Eucharist and so whether that involves a walking back of the earlier message that seemed to come out of the conference or not, I don’t know, but they seem to be wanting to clarify where they are.
J Craig Williams: They have no lack for drama.
Jim Oleske: Yes.
J Craig Williams: Well Jim, it looks like we just about reached the end of our program. So I’d like to take this opportunity to invite you to share your final thoughts as well as your contact information if our listeners want to reach out to you.
Jim Oleske: So, I would just tell folks keep tuned and stay tuned. There are several cases pending before the court in which they might take up these issues that Craig and I have been discussing and bring greater resolution and whether it’s in one of the cases that’s currently pending or a future case that’s certainly going to happen before too long. Folks want to get in touch with me, I’m at Lewis & Clark Law School. If you Google my name in Lewis & Clark, you can pull up my web page which has my email address, [email protected]. I’m also at Twitter at under Jim Oleske and this has just been a wonderful opportunity. Thank you for having me Craig.
J Craig Williams: Jim, thank you. It’s been a really interesting discussion. I’ve learned an awful lot. Thank you very much. It’s been a pleasure having you on the show.
Jim Oleske: Thank you.
J Craig Williams: And for our listeners, if you like what you heard today, please write us on Apple Podcasts through your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think lawyer to lawyer.
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