By  GHollman Headshoteneral Counsel Holly Hollman

Each year at this time, we look to a new term at the U.S. Supreme Court in anticipation of important religious liberty developments. The Court is expected to hear at least one church-state case this term, Trinity Lutheran Church of Columbia, Inc. v. Pauley, which could have a considerable impact on religious institutions that seek government funding. (See for details about the case and the BJC’s brief.)

While we wait for action on other petitions pending before the Court, we recognize this is not a typical time at the Court, which remains short-staffed. The U.S. Senate has refused to hold confirmation hearings for Judge Merrick Garland, President Barack Obama’s nominee to fill the vacancy caused by the death of Justice Antonin Scalia in February. With only eight justices, the Court has granted fewer cases than usual. Several high-profile petitions have been denied likely due to the risk of a 4-4 tie, which simply allows the lower court ruling to stand without giving any guidance for pending and future cases.

After Justice Scalia’s death, the likelihood of tied decisions became apparent. The Court in fact issued a few 4-4 decisions in high profile cases, notably involving immigration and public unions. Avoiding another potential split may have led to the strange result in Zubik v. Burwell, where the Court ordered additional briefing after oral arguments, before ultimately issuing an unsigned opinion sending this latest challenge to the Affordable Care Act’s contraceptive mandate back to the lower courts in the hope that a settlement is possible.

Since February, we have seen something else that is unusual in Supreme Court practice: two written dissents from a denial of review. The Court agrees to hear less than two percent of the petitions filed, usually with no indication as to why the others are denied. Although extremely rare, on occasion an impassioned justice writes a dissent from the Court’s denial. When written, such dissents warrant notice and tell us something about the Court’s divisions and inner workings.

Since Justice Scalia’s death, Justice Samuel Alito has twice written lengthy dissents to denials in church-state cases. One case involved a Jewish prisoner who was prohibited from meeting with other Jewish prisoners to study the Torah. Justice Alito’s dissent asserted that the prison is violating the Constitution by holding Jewish small groups to a different standard than small groups for other religions. The other case involved a pharmacy challenging state regulations limiting the ability of pharmacists to make conscience-based referrals. This dissent asserted that the regulations improperly targeted religious beliefs.

We do not know why the other justices refused to vote to grant these petitions, but it is doubtful it was because they are opposed to religious freedom. The pharmacy case had a complicated procedural history that may have limited its precedential value. Perhaps the justices pragmatically feared another split on a controversial case, with the pharmacy losing and the Court being forced to hear another conscience-based refusal case in a future term.

These dissents from denials are noteworthy not only for their rarity but also for their dire language. In the prisoner case, Justice Alito expressed “disappointment” and bemoaned “the Court’s indifference to this discriminatory infringement of religious liberty.” In the pharmacy case, his dissent (which Chief Justice John Roberts and Justice Clarence Thomas joined) was even starker in tone. Describing the case as “an ominous sign,” the dissent garnered headlines and attention beyond the usual circle of court-watchers.

This rhetoric appears to reflect not only frustration with the Court’s denials and division, but also intense anxiety about religious liberty law in the U.S. when it comes to the hotly debated conflicts over religious objections relating to contraceptives. As a recent Pew Forum poll indicates, the public is deeply divided over claims of conscience that threaten to affect the rights of others to access goods and services, particularly in the commercial context.

Only time will tell if Justice Alito’s dire warnings merely reflect the disappearing middle ground in political debates or accurately foretell a governmental retreat from accommodating claims of conscience. Tough cases challenge us, but they do not need to doom the future of our first freedom. People of goodwill, committed to religious liberty, can disagree on the outcome of hard cases. The legacy of religious liberty we have inherited, however, is too important to surrender to partisanship. Instead, we must continue to work to uphold our principles toward the goal of religious liberty for all, including in the difficult contexts that divide the public and the Supreme Court today.

From the September/October 2016 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.