2021: The year in religious liberty

In many ways, the year 2021 felt like an unwanted sequel: COVID-19, Part 2. The year in religious liberty stories was no exception. The focus of discussion and controversy shifted somewhat, as did the outcomes, thanks in part to a new Supreme Court balance. But issues surrounding the intersection of religious freedom and public health dominated my thinking and writing over the course of the year. Below is my take of the 10 biggest religious liberty developments of 2021, three of which involve pandemic-related government regulations. As for COVID-19, here’s hoping there is no third act dominating the 2022 list.

Of course, there were several other areas of significant religious liberty news that deserve remembering, including the #1 story, which implicates the very foundation of our democracy and the institutions that protect all of our rights and freedoms. But the events of January 6, 2021, are at the top of this list also because it appears to have found support in the myth that America is a “Christian nation,” a lie that fuels the Christian nationalist ideology.

1. Violent attempt to disrupt transition of presidential power on January 6 exhibits evidence of Christian nationalism

The mob that overtook the Capitol building during a day of unprecedented violence on American democracy entered our halls of government, plainly adorned with signs of anti-semitism and racism rooted in Christian nationalism. Many rioters carried Christian flags and placards with references to Christ alongside those with confederate flags. As BJC Executive Director Amanda Tyler said at the time,

The rioters, who can accurately be labeled as radical Christian terrorists, used Christianity as a kind of mascot, trying to lend credibility and social acceptability to their terrorism. In the process, they sullied Christianity and Jesus in the hearts and minds of people all over the world. …

 

What we witnessed this week was un-American and un-Christian… Those of us who claim both identities have a special responsibility not only to repudiate these actions but also to continue the work to dismantle Christian nationalism and to reveal how this dangerous ideology permeates our society.

BJC issued a powerful and important statement in response to the events of January 6.

2. Religious objectors to COVID-19 vaccine fill courts with suits challenging mandates

The story at the top of my 2020 end-of-year list was the sprawling controversy over the impact government restrictions on public gatherings had on the ability to worship in person. In 2021, most in-person gathering restrictions were lifted, in part because of a new weapon in the fight against COVID-19: vaccines. But the vaccine didn’t end the pandemic-related claims of government interference in religious exercise. Instead, the focus over the course of 2021 shifted from whether worshippers should be allowed to gather in person despite public health restrictions to whether individuals should, or must, be allowed a religious exemption from a vaccine mandate.

Religious liberty questions (among other objections) surrounding vaccine mandates are working their way through courts across the country, including the U.S. Supreme Court. These issues pose challenges for employers and government officials administering vaccine mandates that ultimately will be resolved in courts. For example, do mandates have to allow for religious accommodations? Must everyone who requests an accommodation receive one? If not, what is an acceptable process for determining who is entitled to a religious accommodation and who is not? Are additional testing and masking requirements acceptable accommodations? Are the religious liberty concerns different when a private employer requires a vaccine as opposed to federal, state, and local governments?

As I detailed in a recent post surveying current court cases, thus far courts have largely declined to halt vaccine mandates on religious liberty grounds. Some have found that plaintiffs failed to demonstrate with any supporting evidence that they have an objection that is “rooted in religious belief” rather than a political or some other basis for objection. Others have determined that it is premature to decide whether widespread denial of religious accommodation requests amounts to a Free Exercise Clause violation.

3. U.S. Supreme Court sides with religious foster care agency in dispute over nondiscrimination requirement

The U.S. Supreme Court surprised everyone by issuing a unanimous decision in Fulton v. City of Philadelphia. The Court sided with Catholic Social Services (CSS) in their suit over the city’s requirement that as a foster care agency they must certify prospective foster families without discriminating against same-sex couples. The Court agreed with CSS that the city’s requirement violates their religious liberty rights under the First Amendment by forcing them to choose between their long-standing religious mission of providing homes for foster children and violating their religious beliefs regarding marriage by certifying same-sex couples.

How did the Court manage a unanimous opinion? Chief Justice John Roberts, who authored the opinion, focused on a specific fact in this case – namely, language in the contract that grants the city broad discretion to issue exemptions to the requirement that service providers must not discriminate on the basis of sexual orientation. The Court reasoned that the city cannot refuse to consider requests for religious exemption while claiming the right to issue exemptions. Despite the seemingly narrow scope of the ruling, religious liberty experts have expressed concern that Fulton will be cited to further expand the right of religious service providers to bypass important civil rights regulations while still remaining eligible for government funds.

4. New-look Supreme Court uses “shadow docket” to halt enforcement of COVID-19 gathering restrictions against houses of worship

Although the focus of religious liberty cases surrounding COVID-19 shifted to the vaccine, 2021 still included notable developments in cases involving the impact of public gathering restrictions on houses of worship. While the Court upheld such restrictions in 2020, the addition of Justice Amy Coney Barrett changed the makeup of the bench and with it the outcome of such disputes. In April 2021, the court in Tandon v. Newsom ruled that home Bible studies are exempt from the state of California’s regulations limiting gatherings in homes to three households.  The 5-4 decision marked the fifth time since the addition of Justice Barrett to the bench that the Court overturned the 9th U.S. Circuit Court of Appeals and issued an injunction against a COVID-related public health order from California and in favor of a house of worship’s religious liberty claim. Many advocates raised concerns that the Court’s ruling on an emergency basis – the so-called “shadow docket” with no normal briefing schedule, no oral argument, and no substantial opinion explaining its ruling – marked a radical and unwelcome procedural departure.

5. States advance troubling legislation to exempt houses of worship from public health directives

A number of states considered – and several including Texas and New Hampshire passed – legislation that would expand religious exemptions from emergency orders designed to protect public health. After a year of legal disputes over the impact of COVID-19-related health orders on religious services, the bills would limit the ability of state and local governments to enforce public health restrictions, particularly against houses of worship. BJC joined a statement warning that the measures proposed in many states go too far in tying the hands of public health officials.

6. Sacred Oak Flat land becomes religious liberty battleground over transfer to mining company

In March, the Agriculture Department issued a temporary reprieve to a pending transfer to a multinational mining corporation of land that is sacred to the Apache and other Native American tribes. Oak Flat has become the focus of intense advocacy by religious liberty advocates. In July, BJC led an interfaith coalition in urging the Biden administration to take further action to protect the land. The Save Oak Flat Act, which has been introduced in both the House and Senate, would repeal the law requiring the land swap, but it has thus far not moved forward. Meanwhile, a religious freedom argument to save the land from destruction, rejected by a federal district court, is pending before the 9th U.S. Circuit Court of Appeals.

7. New presidential administration brings changes, reversals

In addition to the delay in transferring Oak Flat, the Biden administration instituted a series of orders and appointments impacting religious liberty. In one of his first official actions after being inaugurated, President Joe Biden reversed one of the most troubling, controversial, and highly litigated policies of his predecessor. By executive order, Biden repealed the Muslim and African travel ban, which barred immigration to and from certain countries. BJC Executive Director Amanda Tyler called the move “a victory for faith freedom.” The president also reinstated the Office of Faith-Based and Neighborhood Partnerships, returning former BJC General Counsel Melissa Rogers to lead the office, a position she held during the Obama administration.

8. Supreme Court appears poised to require school funding programs to include sectarian religious education

In December, the Supreme Court heard oral arguments in Carson v. Makin, a challenge to Maine’s program that funds high school tuition for private schools in districts that lack a public high school but excludes schools that offer a secular education. After “worrisome” questioning from the justices, the Court appears ready to require states to include religious education in such programs. BJC joined a brief in the case urging the Court to uphold Maine’s program (for more background on the case, check out season 3, episode 5 of BJC’s Respecting Religion podcast). The argument rests on the principle that states should be allowed to protect taxpayers from being forced to fund distinctly religious activities. The Supreme Court, however, may not agree. A decision is expected this year.

9. U.S. Supreme Court to rule on inmate’s request for clergy to lay hands, pray out loud, in execution chamber

In November 2021, the Supreme Court heard oral arguments in Ramirez v. Collier, a case brought by a death row inmate challenging the state of Texas’ refusal to allow clergy to provide ministerial comfort to him in the execution chamber. In September, the Court issued a last-minute reprieve to John Henry Ramirez to consider his case. BJC joined a brief in the case urging the Court to side with Ramirez, “to prevent him from being executed in a manner inconsistent with his right to exercise his religion in the last minutes of his life.” An opinion in the case, which was heard on an expedited basis, could come any time.

10. U.S. Supreme Court agrees to hear case over refusal to fly Christian flag over Boston City Hall

In October 2021, the Supreme Court agreed to hear Shurtleff v. City of Boston. There, a civic organization called “Camp Constitution” is challenging the city’s denial of their request to fly the Christian flag on a flagpole outside city hall alongside the state and American flags. Plaintiffs claim the city’s policy allows other third parties to fly their flags at the site and thus cannot deny the Christian flag without violating their First Amendment rights. The city counters that the decision to deny the flag was based on the need under the First Amendment to avoid the appearance of government endorsement of any one religion. The case focuses on free speech precedent, but it may also invite the Court to revisit its recent memorial cross decision, American Legion v. American Humanist Association. There, a splintered Court upheld a large memorial cross on public land, primarily because of its particular long-standing history at that site, a critical factor not present in the bid to fly the Christian flag at Boston’s City Hall. The American Legion ruling, as BJC General Counsel Holly Hollman pointed out at the time, does not support new, Christian-only religious displays on public land. Oral argument in the case is set for January 18, 2022.