Senate Republicans are aiming to confirm President Trump’s Supreme Court nominee before the election, but even if they fail, religious liberty advocates expect favorable decisions from what could be an eight-man court.
The court will begin hearing cases early in October, well before the Senate has the opportunity to fill the vacancy left by Justice Ruth Bader Ginsburg’s death last week. Several of the cases will consider questions of religious liberty, most prominently Fulton v. City of Philadelphia, to be heard the morning after the election.
The case, which pits gay and transgender interests against those of Catholic Social Services, a faith-based adoption agency, is the latest installment in a series of cases where government ordinances have brushed up against Christian sexual and moral teachings. In this case, the city of Philadelphia cut off business with CSS after it was revealed that the agency was bound by church teaching not to place children with gay or transgender parents. The case will examine whether Philadelphia violated the First Amendment’s Free Exercise and Free Speech clauses by refusing to work with CSS.
In bringing the case before an eight-person court, the plaintiffs, represented by the nonprofit firm the Becket Fund for Religious Liberty, in some ways would mirror a situation that occurred in 2016 with the death of Justice Antonin Scalia. Facing a vacancy, the court heard a contentious case involving the Catholic order of nuns the Little Sisters of the Poor and an Obama-era contraception mandate. When the court threatened to release a 4-4 gridlock position, it instead opted to offer “no view on the merits” of the case — and sent it back to an appeals court.
But a situation like that is unlikely to arise with Fulton, said Mark Rienzi, president of Becket. Because Trump’s two nominees have increased the conservative majority — and because, in recent years, even liberal justice have sided with them on religious liberty — he expects a success for CSS in Fulton, with or without Trump’s pick.
“Religious liberty has not been a nail-biter, 5-4 issue at the court in recent years,” he said. “It has been one that has been able to command super-majorities most of the time, and I would expect that to continue no matter who’s on the court.”
The court demonstrated this phenomenon in the last term alone, Rienzi said. Little Sisters of the Poor v. Pennsylvania, which settled the case sent back to lower courts in 2016, was decided 7-2. Our Lady of Guadalupe School v. Morrissey-Berru, which gave religious institutions wider latitude in their hiring and firing practices, was also decided in an equally wide margin. In both cases, Ginsburg was one of the two dissenting votes.
The court also delivered a 7-2 decision in Bostock v. Clayton County, a case that expanded gay and transgender protections in employment law, which, although it did not touch on religious liberty directly, raised many questions the court expects to see answered in future cases. Bostock, along with the other cases, Rienzi said, shows that there is a “broad agreement” among both liberals and conservatives on the court that religious liberty is an important issue. The outcome in Fulton could represent an emerging consensus on the court that religious groups are a sort of protected class.
John Bursch, who argued Bostock before the court, said that Fulton has the potential to be a pivotal case in religious liberty litigation. Bursch, a senior council for the nonprofit firm Alliance Defending Freedom, said that the court’s composition following Trump’s first term will be responsible for preventing a deadlock if the case is heard with only eight people.
“In Fulton, a majority of justices should have little difficulty ruling against the city of Philadelphia,” he said. “The Constitution plainly prohibits the city from forcing a Catholic adoption agency to choose between abandoning the Catholic Church’s teachings or abandoning its mission of finding loving homes for the community’s most vulnerable children.”
