Supreme Court preview: Religious freedom cases on the docket

Washington, D.C. Newsroom, Oct 10, 2023 / 14:00 pm

The U.S. Supreme Court during its new term will have the opportunity to reverse precedent that federal agencies have used to justify restrictions on religious liberty.

Religious freedom advocates are closely watching a case the justices have agreed to take up, Loper Bright Enterprises v. Raimondo, which could strip federal agencies of their ability to use broad discretion in interpreting laws.

The broad discretion has led to interpretations that have restricted religious liberty in the past, such as the imposition of a contraception mandate on Little Sisters of the Poor and Hobby Lobby, which were ultimately ruled unconstitutional after lengthy legal battles.

Court watchers are also keeping an eye on several other cases that could have an impact on religious liberty and free speech during this term if the Supreme Court decides to take them up.

“Religious liberty and free speech are central to our ability to live together in peace,” Mark Rienzi, the president and CEO of the legal group Becket, said in a statement. “The court has an important role to play in protecting the First Amendment rights for people of all faiths.”

Federal agencies and regulatory authority 

Although the lawsuit in Loper Bright Enterprises v. Raimondo deals directly with federal fishing regulations, the Supreme Court’s decision in the case could have wide-ranging implications for all facets of the regulatory structure, including efforts to undermine religious freedom. 

At the core of this case, Loper Bright Enterprises is asking the Supreme Court to overturn the precedent set in the 1984 ruling of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The ruling ordered that judges defer to an agency’s interpretation of a law, even if the law does not explicitly grant the agency a certain power, as long as the interpretation is reasonable.

“Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit,” the majority opinion found. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

In a court filing, Little Sisters of the Poor, which is represented by Becket, urged the Supreme Court to overturn the Chevron ruling and strip federal agencies of the broad discretion it has granted them. 

“What would surprise the Founders is that a cycle of executive overreach has gone so long unchecked,” Little Sisters of the Poor’s amicus curiae, or “friend of the court,” brief read in part. 

“For more than a decade (and arguably longer) federal regulators have used their power under Chevron to target religious believers,” the brief added. “Yet the other branches have not yet brought this overreach to an end. Religious liberty disputes like the contraceptive mandate become frozen conflicts that executive branch regulators can continue indefinitely.” 

The Christian Employers Alliance, represented by Alliance Defending Freedom, filed a similar brief, which argued that federal agencies have used broad discretion to justify taxpayer-funded abortion, mandatory health coverage of abortion-inducing drugs, and the imposition of gender ideology throughout the country through mandatory health coverage of puberty blockers and the inclusion of biological males in women’s sports.

“Unelected, unaccountable bureaucrats are weaponizing federal laws to violate Americans’ most fundamental rights,” ADF Senior Counsel Julie Marie Blake said in a statement. 

“Federal agency officials frequently disrespect Americans’ most cherished principles — including religious freedom and the sanctity of life — by imposing personal political agendas that Congress has not authorized,” Blake added. “We urge the Supreme Court to rein in unaccountable bureaucrats … and affirm that courts should not defer to federal agencies when they overstep their executive authority and violate the freedoms the First Amendment protects for all Americans.”

The Supreme Court will take up this case during the current term, which began this October and will continue until October 2024. Decisions are usually released in June. Oral arguments in this case have not yet been scheduled.

Religious freedom and abortion cases

At this point, the Supreme Court has not yet agreed to take up any cases directly related to religious freedom, but some cases are still pending and could be added to the docket while the term is ongoing.

One case in defense of religious freedom and free speech, led by Becket, challenges a law in Westchester County, New York, that established buffer zones around abortion clinics that prevent pro-life sidewalk counselors and activists from engaging in conversations and protests near the facilities. 

Within this 100-foot buffer zone, no person can get within eight feet of another person to provide information about alternatives to abortion unless given express consent. Violations of the law are a misdemeanor offense. 

“I am called to be a compassionate voice to abortion-vulnerable women, letting them know that that they are loved, supported, and can choose life for their babies,” Debra Vitagliano, a Catholic pro-life sidewalk counselor, who brought the lawsuit, said in a statement. 

“I pray that the justices will take this case and allow me to help women in need,” Vitagliano added. 

Another case in defense of religious freedom, filed by ADF, asks the Supreme Court to rule a Washington state law unconstitutional. The law prohibits “conversion therapy” for minors. As defined in the law, conversion therapy refers to therapy “that seeks to change an individual’s sexual orientation or gender identity.” 

The lawsuit was brought by Brian Tingley, a licensed marriage and family counselor, who argues that the law unconstitutionally censors his speech and infringes on his religious liberty. Any violation of the law can result in thousands of dollars in fines and a revocation of one’s counselor’s license. 

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“The government should never control a counselor’s speech with his clients,” ADF Senior Counsel John Bursch said in a statement.

“Washington’s Counseling Censorship Law violates freedom of speech and harms counselors as well as clients,” Bursch added. “Brian has counseled all types of people for more than 20 years, and those conversations are private — certainly not open for the government to censor. The government has no business dictating what personal goals a client can pursue in counseling.”

The Supreme Court has also not taken up any cases related to abortion. However, a lawsuit related to the abortion pill mifepristone could also end up on the docket. 

An appellate court ruled in August that the Food and Drug Administration failed to follow legally required safety protocol when it deregulated the drug and ordered that certain safeguards be reinstated. The Department of Justice has petitioned the Supreme Court to take up the case and overturn that ruling.

The deregulation in question allowed doctors to prescribe the abortion-inducing drug remotely through televisits and receive the drug through the mail.