Is the Supreme Court primed to rewrite religious freedom laws?

Mike Bebernes
·5 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

When Justice Amy Coney Barrett was confirmed to replace liberal icon Ruth Bader Ginsburg on the Supreme Court just days before the presidential election, legal experts predicted she would help establish a new era of conservative dominance on the nation’s highest court.

One area in which Barrett has already played a decisive role during her short tenure is in legal challenges to coronavirus restrictions on houses of worship. Before Ginsburg’s death in September, the justices had narrowly sided in favor of lawmakers who sought to limit attendance at churches.

But Barrett’s presence on the court reversed the balance in cases weighing public health against religious rights. She was the deciding vote in a 5-4 ruling in late November that knocked down restrictions on religious services put in place by New York Gov. Andrew Cuomo. The court has since issued similar decisions in several other cases.

The Constitution establishes a long list of fundamental rights. Often those rights come into conflict, and the Supreme Court is asked to decide which takes precedence. Over the past decade, the court has emphasized religious rights in a few landmark cases, including siding with business owners who claimed religious opposition to a law requiring them to cover birth control in employee health plans and allowing a cake shop owner to deny service to a same-sex couple.

Why there’s debate

The court’s decision to block New York from limiting the size of religious gatherings has broad implications that could apply long after the pandemic has ended, some legal analysts argue. In the past, laws that restricted the free exercise of religion were allowed to stand as long as they applied equal standards to religious and nonreligious groups. The justices upended that with their ruling, potentially setting the stage for future cases granting religious exemptions to a wide array of laws, some argue.

The simple fact that the court ruled on the case, even though Cuomo had already repealed the restrictions, shows an eagerness among the court’s conservative majority to rewrite established precedent on religious freedom that could apply to many other areas, some experts suggest.

Supporters say this potential trend could help reverse decades of legal precedent that has allowed religious rights to be infringed upon. Critics fear the court is primed to use religious freedom as rationale to elevate the rights of Christian conservatives over the rights of everyone else in the country, rolling back protections in areas like abortion, marriage rights, health care, adoptions and transgender rights.

Others say there’s not enough evidence to gauge just how aggressive the new court will be in expanding religious freedom. The justices may prefer to pursue small, incremental changes to existing law rather than throw out decades of precedent on the issue, they argue.

What’s next

In November, the court heard arguments on a case that concerns whether Philadelphia can refuse to send children to a taxpayer-funded foster care agency that refuses to accept same-sex couples as clients. If the justices rule in favor of the agency, the decision could have major implications for antidiscrimination laws across the country, experts say.


The court will allow religious beliefs to take priority over other rights

“Now, instead of defending religious groups from discrimination, our nation’s courts are openly declaring that conservative religious views enjoy a privileged position in the First Amendment above all other rights.” — Tyler Broker, Above the Law

The court is right to aggressively defend religious freedom

“We see how law protects liberty instead of restraining it. … At a time when that liberty faces a consistent threat, we need this faithful interpretation all the more.” — Adam Carrington, Washington Examiner

The court is guided by conservative political ideology above all else

“The lesson here is that the court had entered territory where legitimate competing interests — even urgent ones — may be disregarded in deference to an ideological militancy.” — Editorial, Buffalo News

After being restricted for decades, religious rights will finally have equal weight

“The point is there are no second-class rights — and the right to the free exercise of religion is every bit as important to the Constitution as the right to assemble peaceably, petition government for redress and speak and publish freely.” — Bret Stephens, New York Times

The court has created enormous room for religious objections to existing laws

“For the past six years, the Supreme Court’s right flank has wanted to revolutionize the law governing so-called ‘religious liberty’ cases, in which a plaintiff who objects to following a particular law on religious grounds seeks an exemption from that law. … The Court made this vision a reality.” — Ian Millhiser, Vox

A shrinking share of the population will have outsize influence on America’s laws

“This legal offensive to elevate ‘religious liberty’ over other civic goals is coming even as the share of Americans who ascribe to no religious faith is steadily rising, and as white Christians have fallen to a minority share of the population.” — Ronald Brownstein, Atlantic

The court’s enthusiasm for religious rights only applies to Christianity

“To enforce a strict vision of the Free Exercise Clause for some faiths and not others is a recipe for moral and civic disaster.” — Matt Ford, New Republic

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Photo illustration: Yahoo News; photos: Getty Images