U.S. courts are increasingly leaving to religious believers and institutions the decision whether or not to obey certain laws that apply to most everyone else. One way to view this trend is as an overcorrection on the part of judges who are striving at all costs to avoid entangling courts and churches. But another perspective — not incompatible with the first — is to see an opportunity for believers to hash out some of the most important moral and ethical issues of our time within, and not just outside, religious spaces.
How did we get here? In the past few years, the U.S. Supreme Court has handed down a series of rulings that represent a laissez-faire approach, dodging the biggest questions or else deferring to religious institutions in controversies involving faith. First, in 2018 the justices decided Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, dismissing a civil rights complaint against a Colorado baker who refused to make a custom cake for a same-sex couple celebrating their marriage. The court's reasoning, 7-2, was that the state civil rights commissioners who originally heard the case had been hostile to the baker's beliefs.
Then in 2020, the court decided, again 7-2, that two Catholic schools in the Archdiocese of Los Angeles were exempt from laws prohibiting discrimination in employment on the basis of age and disability. In Our Lady of Guadalupe School v. Morrissey-Berru, the court found that two grade-school teachers were "ministers," and therefore, under the First Amendment, the government could not enforce antidiscrimination laws because to do so would interfere with the church's right to choose who teaches the faith.
In the fall and winter of the pandemic, after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, the court invalidated several sets of state COVID-19 regulations because they treated religious institutions disfavorably in comparison to what majorities of the justices believed were counterpart secular businesses.
And then two weeks ago, as it neared the completion of its annual term, the court unanimously concluded that the city of Philadelphia could not require Catholic Social Services to place foster children with same-sex couples. In a narrow opinion, Chief Justice John Roberts wrote that because the Philadelphia law at issue allowed case-by-case exemptions, the city had to grant exemptions for religious reasons too.
Lower courts have followed suit with similar decisions, including one involving a Catholic university whose faculty attempted to unionize.
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