Traci DeVette Griggs | September 4, 2020 | SHARE: 
The past year has yielded several U.S. Supreme Court rulings on cases impacting religious liberty, from the recent Bostock v. Clayton County—which redefined “sex” in federal employment discrimination law—to the long-running Little Sisters of the Poor case. Some of these rulings have rightfully defended this bedrock freedom of our nation, while others are likely to erode it.
It can be difficult to keep these cases straight, to understand what our nation’s highest court ruled, and to grasp the ramifications of these rulings. Luke Goodrich, senior counsel with the Becket Fund for Religious Liberty, has participated in some of these cases, and he joins Traci DeVette Griggs on this week’s episode of Family Policy Matters to discuss the details and implications of these numerous decisions.
Two recent victories for religious liberty at the Supreme Court are in the Little Sisters of the Poor case, and a case addressing hiring decisions at two religious schools. “In both of these victories, it’s important to underscore that they were by 7-2 margins,” says Goodrich. “They’re not narrow 5-4 four victories. And even among the dissenters, there was broad agreement that religious organizations have to have a First Amendment right to control their message.”
“I would say the overarching pattern from the U.S. Supreme Court on religious freedom is victory for religious freedom,” Goodrich continues. “Over the last decade, there have been around 15 religious freedom cases at the Supreme Court. And in all 15 of those cases, the Supreme Court ruled in favor of the religious party and in favor of religious freedom. So, there’s strong reason to believe that the Court is favorable toward religious freedom. The big exception from this was the Bostock decision.”
Goodrich is sure there will be many more lawsuits against religious groups in light of the Bostock decision. “But we think we have a good shot at winning those suits,” he adds.
Tune in to Family Policy Matters this week to hear Luke Goodrich unpack these religious liberty cases in more detail, and share why all Americans should fight to protect this fundamental liberty.
TRACI GRIGGS: Thanks for joining us this week for Family Policy Matters. The U.S. Supreme Court recently issued rulings on several cases of dramatic importance to religious liberty in our country—some are reason for celebration and others profoundly disappointing. The two cases we’ll discuss today come on the heels of the High Court’s disappointing decision to redefine the term “sex” in federal law. A ruling that will likely contribute to much more conflict over religious liberty in coming years.
To discuss the implications of these decisions, we’re speaking with Luke Goodrich, senior counsel with the Becket Fund for Religious Liberty, which participated in a few of these important cases that finally found successful resolution at the U.S. Supreme Court this year.
Luke Goodrich, welcome back to Family Policy Matters.
LUKE GOODRICH: Thanks so much for having me.
TRACI GRIGGS: Let’s start with one of the most well known and longest running religious freedom cases the Court has heard this session, the one involving the Little Sisters of the Poor. What did the Supreme Court decide, and will this finally put this case to rest?
LUKE GOODRICH: The Little Sisters of the Poor are an order of Catholic nuns who devote their lives to caring for the elderly poor. Almost a decade ago, during the Obama Administration, the federal government issued a regulation that would have required the Little Sisters to use their health insurance plan to provide coverage for drugs that could cause an abortion. So, the Little Sisters sought protection from the Supreme Court. A number of years ago, the Supreme Court basically told the government to go back to the drawing board, and surely the most powerful government in the world can find a way to distribute contraception without using Catholic nuns. After that ruling, President Trump was elected and the Trump Administration issued a new regulation protecting the Little Sisters of the Poor. Unfortunately, several Democrat state attorneys general challenged that rule, challenged the protection for the Little Sister of the Poor, and said it was actually unlawful for the government to protect the Little Sisters. So, we at Beckett took the Little Sisters case back to the U.S. Supreme Court, and in a big seven to two victory, the court ruled that it was permissible for the Trump Administration to protect the Little Sisters of the Poor. And in fact, the government has to consider religious freedom when it’s enacting regulations. Bottom line, Little Sisters of the Poor can get back to doing what they do best, caring for the elderly poor without having the government looking over their shoulder.
TRACI GRIGGS: You also represented the successful case involving two Catholic schools regarding staffing decisions. Tell us about that case, it’s history and ruling.
LUKE GOODRICH: Yes, Beckett represented two religious schools in California and they had to let go of a couple of their teachers for poor performance. And those teachers sued the school, claiming that the school was discriminating. And, because these teachers teach not only the ordinary secular curriculum, they also teach religion—in fact, they’re the main, one of the main ways that the church tries to convey the faith to the next generation—we argued that the government should have no business telling religious schools who is going to teach the faith to the next generation. We had won a victory on this issue at Beckett back in 2012, a unanimous ruling from the Supreme Court that churches have to be able to choose their leaders without government or interference. And in this decision, the court again, by a broad margin, seven to two victory ruled that religious organizations, religious schools, they have a First Amendment right to make important management decisions that affect how they communicate the faith to the next generation. The Court rejected the lawsuits by these teachers and protected the freedom of the church to choose who will teach the faith to the next generation.
TRACI GRIGGS: Well, both of those are very encouraging. Do they have wider implications for other religious organizations and their employees, or is this just one of those narrow cases?
LUKE GOODRICH: Both of these cases have very broad implications for religious organizations across the country. The Little Sisters of the Poor case, there were literally hundreds, actually thousands of religious organizations that were affected by the regulations, forcing organizations to use their own health insurance plans to cover drugs that could cause an abortion. And so that ruling protects really religious organizations across the country that would benefit from the protections in the new rule. And the second case involving teachers in religious schools really affects any religious organization that’s trying to communicate the faith to the next generation. Some of these lawsuits can be highly invasive and can really threaten religious organizations, not only with hundreds of thousands or millions of dollars in damages, but really loss of control over who is going to teach the faith to the next generation. And so that decision from the Supreme Court protects religious organizations and their freedom to choose who is going to communicate their message to the next generation. But both of these victories, it’s important to underscore that they were by seven to two margins, they’re not narrow five to four victories. And even among the dissenters, there was broad agreement that religious organizations have to have a First Amendment right to control their message.
TRACI GRIGGS: Well, on a more somber note, the Supreme Court also issued this summer, a landmark ruling in a case regarding the definition of “sex” in anti-discrimination laws. Talk about that. What potential impacts will that ruling have on the freedom of employers, like your clients, to make staffing decisions that align with their religious tenants?
LUKE GOODRICH: Yeah. In that case, the Bostock decision was very troubling in how the Court redefined sex, and redefined federal law to cover discrimination based on sexual orientation or gender identity. The reason it’s so far reaching is that hundreds and thousands of religious organizations have expectations, have strongly held beliefs about human sexuality, and often expect their employees to uphold and agree with those beliefs. So, the Bostock decision potentially opens the flood gates to a lot of lawsuits against religious organizations. But we think there are strong legal arguments to be made that religious groups can’t be forced to hire employees who violate their core religious teachings. You see this in a variety of organizations, any mission driven organization really, hires employees who support their mission, and religious groups are no different. And in fact, they receive even stronger protection under the First Amendment for the free exercise of religion. We do think there will be more lawsuits, but we think we have a good shot at winning those suits.
TRACI GRIGGS: For those of us who are conservatives and who applauded a conservative majority on the U.S. Supreme Court, some of these decisions aren’t exactly what we expected. Is there a pattern here though? Are you seeing any kind of pattern regarding the U.S. Supreme Court’s decisions on religious liberty?
LUKE GOODRICH: Well, I would say the overarching pattern from the U.S. Supreme Court on religious freedom is victory for religious freedom. Over the last decade, there have been around 15 religious freedom cases at the Supreme Court. And in all 15 of those cases, the Supreme Court ruled in favor of the religious party and in favor of religious freedom. So, there’s strong reason to believe that the Court is favorable toward religious freedom and has issued a number of good decisions. The big exception from this was the Bostock decision, expanding a federal law to prohibit discrimination based on sexual orientation and gender identity. And that is a deeply troubling decision. But even in that decision, the court recognized that there are important religious liberty implications at stake. And I think Supreme Court really views religious freedom as not only a fundamental right, but essential in a pluralistic society to enable all sorts of people with differing views to live together in peace.
TRACI GRIGGS: Over the years working on religious liberty stories, and talking with people through the North Carolina Family Policy Council, I’ve discovered there’s just a lot of misunderstanding about why religious liberty is so important. Why is this something that we need to fight for, do you think?
LUKE GOODRICH: I’m so glad you asked that, I actually recently published a book designed to answer precisely that question. It’s called Free to Believe: The Battle Over Religious Liberty in America, and it’s designed to help ordinary Americans understand why religious freedom matters. And in brief, I argue that there are three main reasons why religious freedom is so important. Number one, religious freedom benefits society, enables religion to flourish, which produces all sorts of good works that are necessary for self-government. Number two, religious freedom is a profound limit on the power of government, and therefore serves as a foundation for all of our other rights because the government that can violate religious freedom can violate any other rights. And then third, and finally, religious freedom is important because it’s a fundamental human right rooted in who we are as human beings, we’re all born with a conscience that directs us. When the government coerces us to go against conscience, it’s really violating who we are as human beings and therefore violating a fundamental human right.
TRACI GRIGGS: Okay, well, let’s talk a little bit more about the U.S. Supreme Court. What are you thinking will happen next session, anything we need to be watching for?
LUKE GOODRICH: Next term, the Court has a truly blockbuster religious freedom case on its docket. It’s another of the Becket Fund cases. It’s called Fulton vs. City of Philadelphia, and we represent a religious foster care ministry and several religious foster families. And for over a hundred years that foster care ministry in Philadelphia has been recruiting families to provide loving homes for foster children. Unfortunately, just a year or two ago, the city of Philadelphia decided to try to shut down that religious ministry solely because of its religious beliefs about marriage. That ministry doesn’t place children in the homes of unmarried couples or of same-sex couples. Now, this case is not an issue of anybody being denied the ability to engage in foster care, there are over 20 other private foster care agencies in the city of Philadelphia that willingly serve unmarried and same-sex couples, and no same-sex couple had ever even come to this ministry seeking help. And if they did, they would simply be referred to another agency. So this is not about access to foster care, it’s about the city of Philadelphia saying we don’t like this religious ministry’s beliefs about marriage and so we’re going to shut them down. And that case is now landed at the Supreme Court, and the key question is, can the government shut down a religious ministry just because it doesn’t like its beliefs about marriage? And that case will be argued in the fall and decided either in late 2020, or early 2021, and that’ll have huge implications for religious groups across the country.
TRACI GRIGGS: What can we, as citizens do to try to protect this fundamental liberty of religious freedom?
LUKE GOODRICH: Well, number one, I would say citizens should get informed. And that’s part of why I wrote Free to Believe so that all Americans can understand why religious freedom matters, precisely how it’s threatened and what we can do about it. And once we get informed, it’s important to take action. And if you are a leader of a religious organization or a pastor or a person in the pew, there are practical steps you can take, both to reduce the risk that your organization may face lawsuits, and to increase the likelihood that religious freedom will be protected for years to come. We need to get informed. We need to take prudent action. And if you consider yourself a Christian, I think it’s important to realize where our ultimate hope lies. Our ultimate hope for Christians is not in favorable election results or good Supreme Court Justices or winning cases, our hope is in the person of Jesus Christ. And we can rest in that confidence and approach all of these conflicts, not from a posture of fear, but from a posture of hope and joy in the goodness of God.
TRACI GRIGGS: Thank you for that. Well, we’re just about out of time for this week. Before we go, Luke Goodrich, where can our listeners go to learn more about these religious liberty cases, and of course your book, Free to Believe?
LUKE GOODRICH: You can find out all about these cases and get up-to-the-minute updates at the Becket Fund for Religious Liberty’s website, which is: becketlaw.org. You can also find my book, Free to Believe: The Battle Over Religious Liberty in America, anywhere books are sold, amazon.com, or at my own website, lukegoodrich.com.
TRACI GRIGGS: Well, Luke Goodrich, senior counsel with the Becket Fund for Religious Liberty, thank you so much for your work and for joining us on Family Policy Matters.
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