- The Washington Times - Saturday, September 28, 2019

More than a dozen battles over religious liberty, including several clashes with LGBTQ rights, are teed up for the Supreme Court’s 2019 term that opens in October, giving the justices every opportunity to put their mark on the First Amendment.

Religious liberty advocates are eyeing two cases in particular that have already been scheduled and that they say will test the limits of the free exercise of religion.

They warn, though, the docket might become even more consequential after the justices return next month to decide whether to weigh in on battles by Catholic charities, religious private school advocates and Christian wedding vendors clashing with LGBTQ rights.

The series of appeals could reshape the docket and make for a blockbuster year.

“All of these cases give the court a chance to revisit some open lingering issues,” said Mark Rienzi, president of the Becket Fund, a religious liberty legal group.

During the justices’ first week back, they will hear arguments Oct. 8 in a case brought by a Christian funeral home owner who fired a transgender employee.

The lower court ruled for the employee, finding the Civil Rights Act of 1964 prevented discrimination based on sex, ruling that gender identity falls within that protection. It’s one of three cases testing the definition of sex under Title VII of the landmark Civil Rights Act.

Though the legal question centers on civil rights rather than religious rights, how the court rules could significantly alter how Christian business owners manage their employees.

Luke Goodrich, vice president at Becket, said the court should leave it up to lawmakers to pass legislation prohibiting discrimination based on gender identity or sexual orientation, which has been done in 22 states plus the District of Columbia.

He said the justices should “create space for the legislature to resolve this issue” and give exemptions for religious organizations.

“A ruling that sex is limited to the biological categories of male and female … would increase calls for legislation like the Equality Act,” he said, referring to legislation passed by House Democrats aimed at protecting the LGBTQ community from discrimination.

The second case already granted a hearing by the high court is brought by Christians hoping to maintain their children’s private school education. The battle was brought against Montana after it withdrew religious schools from a school choice grant program.

Religious liberty advocates say the disparate treatment runs afoul of the Constitution and resembles the high court’s decision in a case in Missouri two years ago where the state provided grants for playground resurfacing to all institutions except those owned by churches.

The high court in a 7-2 decision said that violated the First Amendment’s protection of the free exercise of religion.

“As free citizens, we should be able to choose how … to use the money,” said Mike Berry, chief of staff at the First Liberty Institute.

The faith defenders say citizens shouldn’t be forced to speak in a way that violates their faith, which is one of the arguments presented in a petition for review from a Christian florist who refused to participate as a vendor in a same-sex wedding.

The state of Washington penalized Barronelle Stutzman for violating the state’s public accommodations law. The Supreme Court sent her case back to the state’s high court after siding in 2018 with a Christian baker, who had refused to create a cake for a same-sex wedding.

In the baker’s case, the justices said the state’s civil rights commission showed religious hostility toward the cake maker, but the high court punted on settling the First Amendment conflict.

The narrow ruling has left a series of cases in the lower courts unresolved, pitting LGBTQ rights against Christian-owned businesses.

Washington’s highest court again ruled against Ms. Stutzman, prompting her to seek Supreme Court review once again.

But Robert Tuttle, a law professor at George Washington University, said Ms. Stutzman’s case does not involve any anti-religious animus, which had been present in the baker’s case.

“It is the furthest thing from a slam dunk,” he said, noting he would be surprised if the justices take it up again.

John Bursch, an attorney with Alliance Defending Freedom, disagreed, saying the fact the justices told the lower court to take another look at Ms. Stutzman’s case suggests they would review its subsequent ruling.

“When you thumb your nose at the U.S. Supreme Court, that’ll increase the likelihood they’ll take it,” he said.

Another highly watched case seeking review involves an independent contractor from Idaho who refused to provide the state with his Social Security number, saying that requirement violates his religious beliefs. Idaho, though, says it needs the digits to register him for a business license.

Religious liberty advocates say the case gives the justices an opportunity to revisit a 1990 case in which the court ruled the First Amendment’s free exercise clause doesn’t necessarily require religious exemptions from generally applicable laws.

Meanwhile, Catholic leaders have asked the justices to take a look at a number of legal battles.

One highly watched appeal comes from Catholic Social Services against Philadelphia after the city stopped allowing same-sex couples to serve as foster parents.

The Roman Catholic Archdiocese of San Juan has a challenge pending before the justices that arose after Puerto Rico’s highest court ruled Roman Catholic churches are a single entity responsible for nearly $5 million in pension obligation from three Catholic schools.

“All of them have great potential,” said Mike Berry, deputy general counsel for First Liberty Institute.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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