NC Family Staff | August 12, 2022 | SHARE: 
While we continue to celebrate the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, we should also celebrate several rulings the High Court made in favor of religious liberty and free speech this term.
Alliance Defending Freedom is one of the leading organizations fighting to defend these fundamental rights, and ADF senior counsel Matt Sharp joins host Traci DeVette Griggs on this week’s episode of Family Policy Matters to unpack the U.S. Supreme Court’s recent rulings.
“I think it’s a very encouraging pattern we’re seeing coming from the Court,” says Sharp, “that it is increasing its protection for religious liberty, and for those that seek to exercise their faith in a variety of contexts.”
One example is the case of Coach Kennedy, a high school football coach who was censored from privately praying after games. The Court recognized that “religion is not a second-class right” and that on Coach Kennedy’s own time, “the right to exercise religion is as fully protected as everything else,” says Sharp.
A similar ruling on a school voucher case out of Maine found that “when the government makes a benefit available, whether it’s school choice funding or anything else, it can’t single out and discriminate against religious organizations just because they’re religious…”
Finally, Sharp shares that there is a major case coming up this fall that will confront the question of religious rights versus sexual orientation/gender identity laws. The 303 Creative Case deals with whether graphic designer Lorie Smith can be forced to create wedding websites for same-sex marriages, even if it violates her sincerely held religious beliefs. The High Court’s ruling should finally answer the question that began with SOGI laws that were used to attacked Jack Phillips, Barronelle Stutzman, and creative professionals with strong religious beliefs.
Tune in to Family Policy Matters this week to hear Matt Sharp discuss more details from the U.S. Supreme Court’s various rulings in favor of religious liberty and free speech.
TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. While the biggest news out of the U.S. Supreme Court this year was the landmark overruling of Roe v. Wade, the high court also issued many other important rulings that may affect American families, chief among them several decisions on religious liberty.
Well, here to discuss these today as our friend Matt Sharp, senior legal counsel with Alliance Defending Freedom.
Matt Sharp, welcome back to Family Policy Matters.
MATT SHARP: Thank you so much for having me.
TRACI DEVETTE GRIGGS: Alright. So, the U.S. Supreme Court considered multiple cases that ask questions related to religious freedom. This term, are you finding a pattern to the kinds of religious liberty cases the Court has been accepting?
MATT SHARP: Yes, and I think it’s a very encouraging pattern we’re seeing coming from the Court, that it is increasing its protection for religious liberty, and for those that seek to exercise their faith in a variety of contexts. So, we saw it, for example, in the case of Coach Kennedy—this was the high school football coach that was wanting, after the football games, to be able to go out and silently pray on the field to thank God for watching over the players, for being with them. Yet he was censored from doing so and told that he couldn’t do so because he was a school employee, because he was a public employee. We saw the court step up there and protect Coach Kennedy’s rights, his rights to exercises faith there when he has got free time in between his job duties. I think that’s a very encouraging sign that we’re seeing between Coach Kennedy and some of the other cases, a strong pattern of the court recognizing that religion is central to so many people’s lives and that our Constitution clearly requires the government to respect that central role that religion plays for people.
TRACI DEVETTE GRIGGS: So, in the Coach Kennedy case, what was the key to that? What made the difference, because obviously the prayer is a very public prayer, but you’re saying that it was private, right?
MATT SHARP: That’s exactly right. I think there was two keys there. Number one: this was not a situation where Coach Kennedy was forcing students or others to join his prayer. This was something he did voluntarily. Others could or could not join; it was entirely up to them. This was during post-game free time when players could interact with other players, go see family and friends. So, this was just a very noncoercive private act by Coach Kennedy. Then I think the second thing was the recognition that because this is free time, the right to exercise religion is as fully protected as everything else. So, the Court talked about how Coach Kennedy during this time could have gone to visit with family, could have made a phone call to a friend, could do a lot of things, and the only thing that was being censored was his ability to pray. The Court said you can’t do that; religion has to be given as good a treatment as anything else that you allow during this time. I think that’s an important recognition that religion is not a second-class right.
TRACI DEVETTE GRIGGS: Why do we always get this wrong? Somebody’s always getting it wrong on one side of the issue or the other. It seems like we seem to go to extremes.
MATT SHARP: I think a lot of this flows from religion losing the place of prominence that it held during our nation’s founding. I think there used to be a deeper respect, not just for religion, but for the good that religion did to society. I think they saw religion as something that helped promote human flourishing, that led to charitable actions. I think we’ve lost that recognition of the important role that religion does, despite there being more charities and religious organizations than ever serving people. So, I think when we get a proper recognition that religion is a good for society—just like we believe speech is good, that different viewpoints are good—so too is religion is a good for society and that’s why it needs to be protected.
TRACI DEVETTE GRIGGS: Well, let’s talk about an education case. There was a case Carson v. Macon out of Maine. What happened there?
MATT SHARP: So Maine has a program whereby families that live in rural areas where there’s not a local public school can actually get money to go attend a nearby private school. This is a way to accommodate these families that were, again, they live far from high schools, from cities where there may be schools. Well, the only schools that were excluded from this program were religious schools. So, they were telling these families, “You can go to any private school you want to, as long as it’s not religious.” So here, we saw the government taking a real hostile view towards religion, targeting it and excluding it from being able to participate in this broad program. The Court said, “You can’t do that. When the government makes a benefit available, whether it’s school choice funding or anything else, it can’t single out and discriminate against religious organizations because they’re religious or even because they do religious things like teaching their faith to the next generation of children attending their schools.” I think that’s, again, an important principle, recognizing that religious people, religious organizations are not second-class citizens. They have the same right to participate in public life and government programs and benefits as everyone else, and that includes when they are doing explicitly religious things like educating the next generation in the doctrines of that faith.
TRACI DEVETTE GRIGGS: How did the Court vote on that? Was it split? Was it unified?
MATT SHARP: So, these were actually very good cases. So, I think both of them had strong majorities. The Carson case, I believe was a 6-3 decision. So, you had six of the justices strongly ruling there. I think the Coach Kennedy case may have been the same, but again, it was strong majorities on both of them, of recognizing the importance of protecting religious exercise.
TRACI DEVETTE GRIGGS: You know, this is not the first time—actually it’s probably the third time—that I’ve heard recently about people working across the aisle to come up with reasonable solutions or rulings. Do you have a sense that we’re coming out of this extremely highly polarized time that that we’ve been in? Or is this just a surprise to you too?
MATT SHARP: No, I think we are. I think we’re starting to see how a lot of these government regulations are crossing the line and really hurting people of faith and the organizations in which they serve. I think we saw this during COVID. At the beginning of all of that, there was this clamp down on churches and religious organizations where the government just went too far and they were treating religion as a second-class right, saying, “Well, look, you need food; you need jobs. That’s great, but you don’t really need religion. You don’t need that time of gathering.” We saw numerous court decisions rolling that back, rolling back those government regulations. So now, when we’re talking about states of emergency and other things, there’s not this effort to target religion anymore. I think there’s a recognition that we have to allow people to live out their faith, to worship together, to meet together with religious organizations. I think that’s an encouraging sign.
People of faith are doing a much better job articulating their beliefs and helping to show that they’re just wanting the same right to live out their beliefs and values as other people have. I think a great example of this is the case of Barronelle Stutzman, the Washington state florist who for years had a gay customer that she served, Rob Ingersoll. She knew he was gay and didn’t care. But then when Rob asked her to do custom floor arrangements for his same-sex union, Barronelle politely declined, explained why her faith wouldn’t allow her to do that because marriage was something sacred, and even offered referrals to other florists that would do a great job. I think Barronelle traveling the country—including to North Carolina—and sharing her story has helped people see she is a beautiful, kind woman that loves everybody. All she is asking for is the same right to live out her beliefs that Rob and his partner did, that they were allowed to live out their beliefs about marriage as being open to same-sex couples and things like that. Barronelle is just asking for the same right that they had.
I think when people understand that and they see there is room for people to live and let live—for there to be true tolerance, which respects and allows other views and other ideas and beliefs to flourish and thrive—I think people see that that is possible and that we actually can find some common ground on the need to have tolerance for a variety of views, including the views of people of faith.
TRACI DEVETTE GRIGGS: I love that you are crediting her with kind of changing some of the ways we’re talking about these issues, because it didn’t end well for her, right? I mean that it was not a success story, but the Supreme Court has another shot at that question with Lorie Smith. Tell us about that.
MATT SHARP: With Barronelle’s case, she ultimately entered into a settlement—never required to use her floral design for same-sex unions, but she was ready to retire. I think one of the successes of her case is that it did inspire other creative professionals to stand up and to sort of pick up that mantle and continue to carry it. One of those is Lorie Smith. Lorie is a graphic artist designer who does custom websites and a variety of other things in the state of Colorado. The same state and the same law that’s being used to go after Jack Phillips, the Colorado baker, threatens Lorie Smith and is telling her that if she wants to do websites to promote marriage, custom websites for couples, she has to do websites telling the stories and celebrating same-sex marriages. Again, Lorie says she’s happy to serve everyone, but just doesn’t want to be forced to celebrate specific events that violate her faith. Although the Supreme Court did not take Barronelle’s case, it has taken Lorie’s case. It’s actually going to be argued sometime this fall, and it is directly to this question of whether sexual orientation/gender identity laws that violate people’s free speech, that violate their religious rights, can be misused to go after people like Lorie Smith, like Jack Phillips, and others. So, it’s an encouraging sign, again, continuing this trend from the Supreme Court to take up cases where laws are being misused, misapplied to hurt people of faith, to hurt free speech.
TRACI DEVETTE GRIGGS: The Supreme Court issued a ruling on a case that was heard in 2021. It has to do with free speech issues on college campuses. Talk about that a bit.
MATT SHARP: Yeah. So, this case involved a student in Georgia—his name is Chike Uzuegbunam—who was prevented by a local university policy from sharing his faith on campus. In fact, the college there where he was sharing it viewed his speech as being akin to threatening speech that it was harming others by him just simply standing out on campus, sharing his faith with people walking by, sharing his belief in Jesus Christ with them. So, we saw this great ruling from the Supreme Court upholding his right to free speech and recognizing that university officials cannot punish and silence students for sharing their faith, for sharing their beliefs without consequences. So, we got a great ruling for Chike and ultimately the university, the college there—Georgia Gwinnett College—was held accountable for its actions to censor Chike from being able to share his faith peacefully on campus.
TRACI DEVETTE GRIGGS: Looking forward, what are some cases the Court either plans to hear, or that you see making their way through lower courts that we ought to keep an eye out for?
MATT SHARP: Sure. So, number one, I would go back to the Lorie Smith, the 303 Creative case. It’s going to be argued this fall. That’s going to be an important case to build on Jack Phillips’ win a few years ago at the Supreme Court, and others like him like Barronelle Stutzman and other creative professionals, to uphold their right to live out their faith and to speak freely.
I think some other interesting issues bubbling up in the courts are ones dealing with these Save Women’s Sports laws. These laws that say males are not eligible to compete on female teams and to preserve the integrity of female sports. So, we’ve now seen 18 states pass these laws, which is a great move; just two years ago, zero states had these laws, and we saw a big push of states recognizing the need for these. But unsurprisingly, the ACLU and groups like them have challenged these in Idaho, in Indiana, and Florida, and other states. Several of those are working their way through the courts right now, including the Idaho case which is at the Ninth Circuit Court of Appeals. So, I think within the next year or two, we’ll hopefully see the Supreme Court take up one of these cases and uphold these common-sense laws that protect fairness in women’s sports.
I think one other issue I’d flag is we’re starting to see more and more efforts and attacks on medical rights of conscience, of telling doctors, nurses, and others that they must participate in specific procedures like abortion, like gender so-called “gender transition” procedures, or sterilization on young kids that violate the conscience of medical professionals. We’re starting to see that even come into play with the Biden Administration pushing efforts to undermine conscience and federal law. So, I think we’re starting to see some lawsuits bubbling up on that issue. Again, I hope to see the Supreme Court take up a case and rule on the importance of protecting the medical professionals’ right to do no harm and practice medicine consistent with their beliefs.
TRACI DEVETTE GRIGGS: Well, we’re just about out of time this week. Before we go, Matt Sharp, where can our listeners go to follow the cases we’ve discussed today, and all of your good work there at ADF?
MATT SHARP: They can visit our website, adflegal.org, where they can learn more about our cases, learn how to support the work they’re that we’re doing, and specifically to help us pray for a lot of these cases. So again, that’s adflegal.org.
TRACI DEVETTE GRIGGS: Matt Sharp, senior legal counsel with Alliance Defending Freedom, thanks so much for being with us today on Family Policy Matters.
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