Last month the U.S. Supreme Court agreed to decide whether a city may exclude a Catholic adoption agency from its foster care system because it refuses to work with same-sex couples. The agency sued the city, claiming the decision violated the First Amendment rights to religious freedom. A unanimous three-judge panel of the U.S. Court of Appeals ruled against the agency holding that the city was entitled to require compliance with its non-discrimination laws. The odds are better than even that the Supreme Court will reverse or modify the lower court ruling.
The clash between religious rights and LGBTQ rights seems to be moving along toward clarification. In addition, from some comments from Justices in earlier cases, a majority on the Court seems inclined to revisit the whole notion of whether religious rights are entitled to special accommodation in the context of neutral laws of general applicability.
On the same day as it took the foster care case, the Court turned down a request that it decide whether Walgreens was entitled to fire a worker who refused to attend a training session on his Sabbath. Although federal law requires employers to “reasonably accommodate” employees’ religious practices without a resulting “undue hardship” on the company’s business, what constitutes “reasonable” and “undue hardship” was left unclear. A 1977 decision had indicated that the standard was met by the imposition of anything more than a “de minimis” cost on the employer. While several of the Justice are on record as supporting a review of the de minimis standard, the Walgreens case was said to have several technical problems.
Nathan Lewin, a pre-eminent Supreme Court constitutional litigator, has written an intriguing article (“The Justices Punt on Religious Liberty”) in the March 5 issue of the Wall Street Journal, lamenting the failure of the Court to take up the Walgreens case, and also recounting his own experiences as an Orthodox Jew receiving religious accommodation during the course of his clerkship with Supreme Court Justice John Harlan, his service as a deputy assistant attorney general in the Justice Department and also from federal judges while representing clients in his private trial and appellate law practice.
(Lewin, who has authored countless friend-of-the-court briefs submitted to the Supreme Court on behalf of the Orthodox community, played a key role in the drafting and the adoption of the federal religious accommodation statute in1972 and also participated in the oral argument in the Supreme Court in the 1977 case.)
Ideally, the Supreme Court would have taken the Walgreens case and possibly clarified the important rights of religious observers on the job. But that will have to wait for the appropriate case to make its way through the lower courts. On the other hand, we are also hopeful that the court will use the foster care case to make clear that religious practitioners will not have to abandon their faith in order to be contributing members of society.