The U.S. Supreme Court term for 2019-2020 could be a “blockbuster” when it comes to religious freedom issues as the nation’s high court is set to take on a handful of cases and possibly more that deal with the First Amendment right, lawyers who work for a prominent religious freedom law firm believe.
“This is shaking up to be an exciting term for religious liberty,” Mark Rienzi, president of the religious freedom legal nonprofit Becket, told reporters on a press call Tuesday.
“I think this term will see the court have some opportunities to tighten up and improve its doctrine and in the process, perhaps, stem the tide of religious liberty cases it’s been getting in recent years by giving some clear answers and some clear resolutions to some lingering controversies.”
The Supreme Court has agreed already to hear a handful of cases that carry religious freedom implications, while the court is set to consider other religious liberty petitions that Becket lawyers feel have a good shot at being taken up by the justices.
At this time, there are many legal questions seemingly left open by the Supreme Court’s narrow rulings in the last few years, and split circuit court decisions that resulted from the court’s sending of high-profile cases back to lower courts to be worked out.
“There’s a possibility [the court] could grant cert [petitions] on some of these things late,” Rienzi explained. “So some of these issues might show up in the following term. But I actually can’t recall a time in the last 20 years that there were this many key issues that seemed ready for decision and primed for decision and a court that seems open to them.”
“So I think it’s likely to be a very big term,” he added. “My real prediction is big term, followed then by some small terms because if the court actually resolves these lingering issues that keep coming up to it, it can kind of clear the decks and give people some firm rules. And then it will not have to deal with these questions quite as often after this term or this term and next.”
Cases the Supreme Court has already agreed to hear
One issue that the Supreme Court has agreed to take on this upcoming term involves a trio of petitions looking for answers as to whether the Title VII law banning discrimination on the basis of sex also protects on the basis of gender identity and sexual orientation.
Those three cases are Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.
The more prominent of these three cases is Harris Funeral Homes v. EEOC, which stems from a Christian funeral home owner’s firing of a transgender employee who refused to wear clothing that corresponded with the employee’s birth sex.
The case marked one of the first legal actions the EEOC took on behalf of transgender individuals alleging sex discrimination against an employer.
In 2018, the Sixth Circuit Court of Appeals ruled unanimously that the funeral home owner, Tom Rost, discriminated against the employee.
As for Bostock v. Clayton County and Altitude Express v. Zarda, those cases were consolidated and deal with whether or not the 1964 Civil Rights Act protects from sexual orientation discrimination.
“And in all three cases, these involve employees who claim that they lost their job either because of their sexual orientation or their gender identity,” Becket Senior Counsel Luke Goodrich said on the press call. “And they filed suit under Title VII, which is the federal law that prohibits employment discrimination.”
Goodrich said that from 1979 until 2017, federal appeals courts that have addressed the question of Title VII all held that it doesn’t prohibit discrimination based on sexual orientation or gender identity.
He said that changed in 2017 when the Seventh Circuit Court of Appeals departed from the consensus, followed by the Second Circuit in the Altitude Express case.
“Many religious organizations have long-standing beliefs about human sexuality, and they often expect their employees to live in accordance with those beliefs,” he said.
“But if the Supreme Court expands the scope of Title VII and agrees that discriminating based on sexual orientation or gender identity is an illegal form of sex discrimination, all of a sudden, all these religious organizations will be exposed to new lawsuits and potentially massive liability. This applies to churches, religious schools, religious social service providers, basically, any religious organization that expects its employees to follow their religious standards of conduct could face new liability.”
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SOURCE: Christian Post, Samuel Smith