Analysis

Barrett May Upend Mentor Scalia On Religious Freedom

Law360 (September 30, 2020, 7:44 PM EDT) -- As Christian-affiliated entities increasingly chafe under new anti-discrimination measures protecting the LGBTQ community, it could be Judge Amy Coney Barrett who upends her mentor Justice Antonin Scalia's long-standing decision curtailing religious exemptions to state and local laws in a soon-to-be-heard case before the U.S. Supreme Court.

The justices are set to hear arguments in early November from a Catholic foster agency alleging that its religious freedoms were violated when the city of Philadelphia axed a contract with the organization over its refusal to place children with same-sex couples.

The case, which has drawn intense interest from conservative and religious groups, presents the justices with an opportunity to reconsider the late Justice Scalia's majority opinion in Employment Division v. Smith.  The decision found that laws which are equally applicable to religious and nonreligious entities cannot be challenged as violations of the right to free religious exercise.

Judge Barrett clerked for Justice Scalia in the late 1990s and praised his judicial philosophy after being nominated to the high court by President Donald Trump following the death of Justice Ruth Bader Ginsburg. But despite her allegiance to Justice Scalia, legal experts said that Judge Barrett would probably find her way to upending the Smith decision if called on to do so in the case.

"[I'm] not clear how a Justice Barrett would feel about starting her time on the court by overruling one of her mentor's most famous precedents, but if they are forced to reach the issue, my bet is that she would vote to overrule Smith," said Douglas Laycock, a professor at the University of Virginia Law School who submitted an amicus brief in the case on behalf of the Christian Legal Society.

The high court agreed to take up the case in February following a Third Circuit decision dismissing a lawsuit accusing the city of violating Catholic Social Services' religious liberties by severing ties with the group over its refusal to place foster children with same-sex families.

The city said that CSS' refusal ran afoul of Philadelphia's Fair Practices Ordinance barring discrimination on the basis of sexual orientation.

The Third Circuit sided with the city in reliance on the Smith decision, which struck down decades of precedent as it found that "neutral" and "generally applicable" laws could not be challenged as violations of the First Amendment's protections on free religious expression.

The Smith decision, which was handed down in 1990, stemmed from claims that Oregon's ban on the use of peyote violated the First Amendment rights of two Native Americans who were denied unemployment benefits after being fired for using the hallucinogen as part of a religious ceremony.

At the time the decision was handed down, it was the high court's liberal justices who were in dissent.

Since then, however, the ruling has come under fire from Christian groups as religious exercise claims have butted against LGBTQ rights issues.

"I don't think they envisioned back then that it might be people who hold orthodox Christian beliefs who'd be the claimants in these kinds of cases," said Steven Heyman, a professor at Chicago-Kent College of Law who filed an amicus brief in the case. "The way this whole national debate has evolved, it's really these religious conservatives who now see their beliefs under attack by things like same-sex marriage, and the conservative judges have much more sympathy for those claims."

But whether that sympathy leads a potential Justice Barrett to upend the 30-year-old precedent in the Smith case remains to be seen.

"Pretty much everyone assumes that she would be much more sympathetic to the plaintiffs and much less sympathetic to the city than Justice Ginsburg would have been," said Laycock.

"Justice Ginsburg would have found a compelling government interest in refusing any exceptions to whatever rule Philadelphia produces," he added. "My guess is that a Justice Barrett would not."

While Heyman said that he believed a wholesale rejection of Smith was an unlikely outcome when the high court accepted the case, the death of Justice Ginsburg and the potential ascension of Judge Barrett to the bench has changed the calculus significantly.

"I would've been surprised if the court had taken the opportunity to actually overrule Smith and to return to some kind of strong test for religious liberties, but with Barrett on the court I think it's more of a live possibility that they might do that," Heyman said.

There's little in Judge Barrett's tenure on the Seventh Circuit to suggest how she might approach questions of governmental infringement on a religious entity's free exercise rights, Heyman said.

When a three-judge Seventh Circuit panel rejected arguments over the summer that crowd size limits imposed as a result of the pandemic violated a church's religious liberty, there was no indication from Judge Barrett that she would have opted to hear the case en banc.

"I don't know what to make of that exactly, but it doesn't exactly provide evidence that Barrett would be a crusader on the issue," he said.

On the other hand, Heyman pointed to her signature on a February 2012 letter tagging the Obama administration's efforts to provide a workaround for religious employers to comply with contraception mandates under the Affordable Care Act as an "assault on religious liberty."

"That's a rule that would seem to be clearly constitutional under Smith," Heyman said. "So somebody who signs a statement attacking that as an assault on the rights of conscience seems like somebody who has a view of religious liberty that is broader than what Smith recognizes."

When presented with questions over the intersection of LGBTQ rights and religious freedoms in recent years, the court has generally taken a careful, measured approach.

In deciding the controversial Masterpiece Cakeshop v. Colorado Civil Rights Commission case two years ago, the high court declined to get to the larger question of whether a state law ensuring nondiscrimination in public accommodations ran afoul of the religious freedoms of a baker cited his religious beliefs in refusing to make a wedding came for a same-sex couple.

Instead, the justices ruled 7-to-2 in favor of the baker on grounds that the state's civil rights law had subjected his religious beliefs to "impermissible hostility."

"In a universe were the court existed as it did a month ago, you could see various pathways for the court, particularly a five-justice majority with the chief, to come out feeling that they wouldn't need to reach the big question of whether Smith should be overturned," said David Flugman, a partner with Selendy & Gay PLLC who penned an amicus brief in support of the city in the CSS case.

With Judge Barrett on the court, however, Flugman said it could be easier to reach a five-justice majority in favor of a sea change when it comes to Smith.

"If the chief is no longer the vote that's being courted the most and instead you have five justices who want to do something bigger, then there's a possibility you'll actually see a decision that goes more towards the larger questions that the right wing wants to see resolved in their favor," he said.

However, Laycock said that Judge Barrett's fealty to Justice Scalia's originalist views could lead her to uphold the precedent set in Smith.

"There are conservatives who think on originalist grounds that the free exercise clause does not provide for religious exemptions," he said. "Recall that it was Justice Scalia who on his own initiative, without having been asked, cut way back on the scope of the free exercise clause. And there are conservatives who think that when the government spends money, it can attach whatever conditions it chooses. So don't take anything for granted."

--Additional reporting by Jimmy Hoover. Editing by Jill Coffey.

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