Top 10 religious liberty stories of 2020

You don’t need me to tell you this, but 2020 has been a year like no other.

Like every other area of human life, the coronavirus pandemic dominated religious liberty discussions this year. The pandemic raised the stakes for questions surrounding when and whether religion should be exempt from government regulation. And there were several other areas of significant religious liberty news, including multiple Supreme Court rulings.

Below is my take of the 10 biggest religious liberty developments this year, with the caveat that – being that this is 2020 – the year is not over yet.

1. COVID-19 crisis brings flood of religious liberty litigation, multiple Supreme Court interventions

The coronavirus pandemic is a public health tragedy, leaving families around the world suffering from illness, death, loss, and isolation. Every sphere of human life has been touched by this crisis – including how we learn, how we communicate, how we work and shop, how we celebrate and mourn, and how we worship. In the face of grave health risks, congregations have responded creatively to find ways to worship, and they have continued and even expanded ministries in this time of need.

The question of how to worship amid the pandemic has also raised significant, ongoing religious liberty challenges throughout this year. The desire of some congregations – or their leaders – to hold services that do not comply with state or local government regulations designed to slow the spread of the virus has led to dozens of lawsuits across the country. As the year comes to an end, below are some highlights of that litigation and a summary of the current state of COVID-related religious liberty law.

Federal courts in most states have upheld restrictions limiting in-person gatherings, including worship services, because of the significant government interest in protecting public health and because they have concluded that the restrictions do not “target” or otherwise discriminate against religion. The U.S. Supreme Court bolstered this view back in May when they ruled 5-4 in favor of California Gov. Gavin Newsom’s restrictions on public gatherings. In a concurring opinion, Chief Justice John Roberts explained that the order did not discriminate against religion because similar secular gatherings faced similar – or more severe – restrictions. In July, the Supreme Court likewise declined to issue an emergency injunction to halt restrictions in Nevada. Most federal appeals courts and trial courts to hear similar disputes followed Chief Justice Roberts’ lead and reached the same conclusion, ruling in favor of restrictions on houses of worship in light of the coronavirus threat.

That judicial trend may be reversing, however. On Thanksgiving eve, the Supreme Court ruled in favor of congregations in New York that challenged Gov. Andrew Cuomo’s worship service restrictions that capped attendees at 10 and 25 in areas targeted for their sharp rise in infections. The ruling was notable because the 5-4 majority included newly confirmed Supreme Court Justice Amy Coney Barrett (who replaced Justice Ruth Bader Ginsburg), presumably tilting the balance of the court in this dispute. At the very least, the decision requires that courts look very closely at the basis for any government action that so severely curtails religious worship. SCOTUS subsequently threw out trial court rulings in Colorado and New Jersey that left in place restrictions on worship service gatherings, and it required those courts to reconsider the request for an injunction in light of their decision in the New York case.

Litigation surrounding COVID-19 also includes challenges to school closing orders initiated by private, religious schools who argue that disallowing in-person learning violates their religious liberty rights. The 6th U.S. Circuit Court of Appeals rejected that claim earlier this month, finding that Kentucky Gov. Andy Beshear’s blanket halt of all in-person learning at both public and private schools is neutral, lacking “even a hint of hostility toward religion.” The Supreme Court by a 7-2 vote declined to intervene, citing the effective expiration date of the governor’s order.

Worship service cases and religious school cases continue to wind through the courts, and they likely will increase in number if new restrictions are put in place by the nation’s governors to counter the intense spike in infections as the year comes to an end. These disputes promise to continue testing the limits of a critical and delicate religious liberty fault line: the extent to which religious institutions are and should be subject to laws that are neutral with respect to religion but burden the free exercise of religion. This year has shown that our First Freedom can withstand carefully drawn restrictions that are necessary to protect public health. We also have seen that religion can adapt and thrive while taking necessary precautions to keep congregants and communities safe.

2. Protests against racial injustice lead to conversations about white supremacy and Christian nationalism.

The summer of 2020 saw global protests against racism and white supremacy after the killing of George Floyd and Breonna Taylor and the shooting of Jacob Blake by police officers. In Washington, D.C., peaceful protestors were forcibly cleared from Lafayette Square to clear a walking path for President Donald Trump to St. John’s Church, where he posed with a Bible in a now-famous photo op that drew swift condemnation a dangerous misuse of faith for political ends. The image became a defining picture of the Trump presidency as well as a tangible display of the weaponization of Christian nationalism against the cause of racial justice.

The conversation among religious leaders about racial injustice included the painful recognition of the historic and ongoing role of white supremacy in the story of American Christianity in the form of Christian nationalism. As BJC Executive Director Amanda Tyler wrote, “institutions and individuals are grappling with their own complicity with racial injustice and white supremacy.” BJC explored this issue in a national conversation in June with author Robert P. Jones and religion journalist Adelle Banks.

3. Makeup of U.S. Supreme Court changes

In September, Supreme Court Justice Ruth Bader Ginsburg passed away, leaving a voting record reflecting support of both the Establishment and Free Exercise Clauses. BJC General Counsel Holly Hollman reflected on Ginsburg’s legacy, and Hollman and Amanda Tyler wrote about her approach to religious liberty. Ginsburg’s passing left a vacancy on the High Court just weeks before the presidential election. Her seat was filled when the U.S. Senate confirmed Amy Coney Barrett. BJC researched and prepared a report on Barrett’s church-state record in advance of her expedited Senate hearings. The change in the makeup of the Court may have already tilted the court’s approach to religious liberty matters. As explained earlier, Justice Barrett joined a 5-4 majority in favor of congregations challenging worship service attendance limits in New York designed to curb the spread of the coronavirus.

4. Supreme Court expands government ability to fund religious schools

In June, the U.S. Supreme Court struck down a Montana ruling that protected against state funding of religion by excluding religious schools from its tuition assistance program. In the troubling 5-4 ruling in Espinoza v. Montana Department of Revenue, the Court held that the state discriminated against religion by applying a state law barring the use of government funds to promote religious education. BJC had urged the Court to uphold the state’s rule as a critical church-state safeguard that states should be allowed to employ. General Counsel Holly Hollman expressed BJC’s disappointment in the ruling, which, she explained, “contradicts the special treatment that religion rightfully receives to keep government from influencing and interfering with it.”

5. SCOTUS rules in ministerial exception cases

In July, the Supreme Court ruled in a pair of cases testing the limits of the “ministerial exception” to employment discrimination claims, a doctrine that protects the right of religious institutions to hire and fire employees with a ministerial function. In a 7-2 decision, the U.S. Supreme Court ruled that religious school employees tasked with educating young children in the school’s faith qualify as “ministerial” employees; thus, the Court held, their claims of employment discrimination cannot be adjudicated without improperly entangling courts in questions of religious doctrine in violation of the First Amendment.

6. SCOTUS considers whether religious contractor can be required to comply with nondiscrimination laws in certifying prospective foster parents

In November, the Supreme Court – including Justice Barrett – heard oral argument in Fulton v. Philadelphia, a challenge to the city’s requirement that Catholic Social Services refrain from discriminating when screening for prospective foster parents. CSS argues it is entitled to an exemption from the nondiscrimination requirement. It says that exemption is to accommodate its religious objection to allowing same-sex couples through the screening process.

In a brief filed with the Court, BJC argued that requiring government contractors performing a government function with government money to comply with nondiscrimination policies – like Philadelphia’s – is an important means of protecting religious freedom, not an unlawful burden on religious exercise. The brief emphasizes that without enforcing those policies, decisions like foster parent eligibility are subject to religious discrimination.

7. Federal agencies issue new rules and guidelines to implement Executive Orders on faith-based partnerships

In December, nine federal agencies announced a joint final rule following President Trump’s “Faith and Opportunity Initiative” Executive Order signed at the beginning of the year. The rule removes critical religious liberty safeguards designed to protect beneficiaries of federally funded government programs. BJC issued public comments in opposition to those rule changes when they were proposed in February.

Meanwhile, in May, the Department of Labor issued new guidelines purporting to expand religious organizations’ access to federal grants. For its part, the Department of Education in September issued a rule that bars public universities from denying organizational privileges to faith-based student groups that have discriminatory membership or leadership restrictions.

8. U.S. House passes religious liberty legislation

This year, both houses of Congress passed important legislation supporting religious freedom for all.

In July, the House passed HR 2214, the NO BAN Act, a resolution to undo President Trump’s controversial anti-Muslim travel ban and to prohibit future travel restrictions and immigration-related decisions based on religion. BJC applauded the passage and support the resolution as a “powerful and necessary repudiation … of anti-Muslim discrimination.”

This month, the House passed House Resolution 512 and the Senate passed Senate Resolution 458 – resolutions which call for the repeal of blasphemy and apostasy laws in countries around the world. Dozens of organizations, including BJC, worked to educate lawmakers on the dangers of such laws, which punish those who insult or demean religion and those who change religions. These both send a strong, unified message of support for religious freedom for all people.

9. U.S. Supreme Court upholds administration rule expanding religious accommodations from the contraceptive mandate

In July, the U.S. Supreme Court again waded into a question about religious accommodations from the Affordable Care Act’s contraceptive mandate. This time, the issue was more a question of administrative law than religious liberty law: Did the Trump administration exceed its authority by greatly expanding eligibility for organizations to opt out, for religious reasons, of the requirement to provide contraceptive coverage?

A 7-2 majority upheld the administration’s rules and returned the case to the trial court, rejecting the state’s argument that the administration erred by considering the application of the Religious Freedom Restoration Act (RFRA). BJC General Counsel Holly Hollman expressed hope that the “substance of the administrative action is closely examined” by the lower court, warning that “RFRA doesn’t demand sweeping exemptions that harm other interests. Hollman and Amanda Tyler discussed the case in Episode 12 of the BJC Podcast series Respecting Religion.

10. COVID relief funding raises church-state questions for houses of worship, religious employers

In response to the economic impact of the coronavirus pandemic, Congress passed the CARES Act in March, which created multiple funding relief mechanisms to benefit businesses, including nonprofit organizations. Included were forgivable loans designed to keep employees of small businesses on the payroll.

The program raised difficult issues of principle for many houses of worship that are concerned about church-state separation. Should CARES Act funding be used, for example, to cover a minister’s salary or church mortgage payments, two areas traditionally off limits to government funds? What will the government require in the form of accounting, oversight, and certification for a house of worship to qualify for the funds? Should houses of worship accept financial support from government, even in times of economic crisis? An episode of BJC’s Respecting Religion podcast included a thoughtful and helpful discussion of these issues.

This is far from a complete list of the 2020 stories impacting religious liberty. As in all areas of life, so much happened this year with regard to faith freedom! For more on these topics – and to hear it discussed as it happened – check out the two seasons of Respecting Religion on the BJC Podcast, featuring Amanda Tyler and Holly Hollman. And, as always, I’ll be writing about things as they happen in the latest news section of BJC’s website. For news alerts and links, follow me on Twitter: @BJCBlog.

Thanks for reading this year! Stay safe, and Happy New Year to all!