Earlier this summer, as the Supreme Court began to hand down its final decisions, political liberals were singing the praises of Justice Neil Gorsuch. The Trump appointee penned the majority opinion in a landmark case that extended employment anti-discrimination protections to LGBT Americans. Following almost immediately on that decision’s heels, however, came a series of church-state cases that gave many of those same liberals pause. In that trio of cases, Gorsuch made clear that, as he sees it, the U.S. has not gone nearly far enough in its protection of religious Americans.
This term’s church-state cases were some of the very last to be released by the Court. On June 30, Espinoza v. Montana Department of Revenue addressed the question of whether a state could prohibit the use of a taxpayer-funded scholarship to pay for tuition at a religious school. Then, on July 8, the Court addressed two additional issues: first, the question of how much deference a religious organization should be given in determining which of its employees are performing “religious” (as opposed to “secular”) work, and, second, the question of how far the government can go in accommodating employers with religious objections to providing contraception, as mandated by the 2010 Affordable Care Act.
Though these three cases contain only one short portion penned exclusively by Gorsuch, the combination of his own writing and the other opinions he signed on to shows that he is eager to give the widest possible latitude to citizens’ claims about what constitutes—and what violates—their free exercise of religion. This eagerness to defer to religious claimants is significant for at least two reasons: It puts the First Amendment’s two religion clauses into direct conflict with each other, and it is almost certain to result in cases in which businesses are allowed to deny the very employment protections the Court has just extended to LGBT Americans.
This situation may seem incoherent or even hypocritical, but it is actually the product of an ongoing national dispute over the meaning and limits of the First Amendment—particularly the portion specifying that Congress will not prohibit the free exercise of religion. This dispute goes back decades, but it has intensified in the face of growing public support for LGBT rights. Americans’ growing support for such rights has converged with widespread uncertainty about exactly how these rights will interact with the religious convictions of some Americans, and this uncertainty has fueled a high-stakes culture war over the nature and limits of “religious freedom.” But, while it’s easy to imagine that today’s unrest over religious freedom is nothing more than the product of conservatives’ opportunistic political maneuvering, there is something deeper going on here as well: This conflict hinges on a genuine dispute over how we should be defining “free exercise” in the first place.
Think about it this way: When a government promises to protect the free exercise of religion, is it promising that it won’t force people to believe things that violate their conscience, or is it promising that it won’t force people to do things that violate their conscience? The answer might seem obvious: The free exercise of religion wouldn’t mean much if it protected people’s beliefs but not the actions stemming from those beliefs. In practice, however, the U.S. government has all kinds of reasons to be hesitant to protect religious actions. Such actions, for example, might violate the law, or they might violate the rights of some other segment of the population, or they might create a public danger. In fact, when the Court made its first foray into interpreting the free exercise clause, in 1879, it relegated the First Amendment’s free exercise protections to the realm of “opinion” only, leaving religiously inspired actions subject to intense government regulation.
Since that 1879 case, the Court has broadened its understanding of the protections afforded by the free exercise clause, but this fundamental discomfort over religious action continues to lurk beneath the surface of its decisions. And here is where Gorsuch comes in. From his earliest days on the Court in 2017, he has pushed for a radically expansive approach to the issue of religious actions—an approach that does not merely seek to protect the right to engage in religious actions, but that defers almost entirely to religious claimants to determine which of their actions should be protected and why.
Gorsuch articulated this approach in his very first free exercise case as a justice on the Court, a 2017 case titled Trinity Lutheran Church of Columbia v. Comer. In that case, the Court ruled in favor of a Missouri church that was seeking access to government funding, concluding that the state provision prohibiting such funding violates the free exercise clause. As I have explained elsewhere, Gorsuch signed on to the Court’s decision even as he pushed his colleagues to adopt an even more generous approach of the free exercise clause. The Court’s majority opinion had drawn a distinction between religious “use” and religious “identity,” ultimately ruling that the government can refuse to make public money available for particular religious uses but that it typically cannot withhold “a generally available benefit solely on account of religious identity.” To put it another way, a state can refuse funding to religious groups based on what they intend to “do” with the money, but it can’t refuse funding based on who they “are” in the first place.
In a brief concurrence, Gorsuch applauded the majority for extending the protections of the free exercise clause to the claimant, and then immediately proceeded to dispute the “use versus identity” distinction at the heart of their decision. The free exercise clause, he asserted, “guarantees the free exercise of religion”—and “exercise” entails not only one’s identity (or “status,” as he puts it) but also the things one feels compelled to do in the course of living out that identity. In just under two pages, Gorsuch strongly signaled a commitment to opening the doors of government funding to all manner of overtly religious activities.
Gorsuch’s approach to the issue of government funding of religion significantly stretches the free exercise clause, but it also flies in the face of how the First Amendment’s other religion clause—the establishment clause—has been understood by most legal professionals (arguably going back to James Madison himself). Trinity Lutheran thus put Gorsuch in league with the Court’s most unorthodox establishment clause interpreter: Clarence Thomas. Though Gorsuch has not gone so far as to openly embrace Thomas’ unconventional claim that the establishment clause should only apply to the federal government, he has signed on to almost every one of Thomas’ church-state opinions since joining the Court in 2017.
The Court’s three recent church-state cases are a predictable unfolding of Gorsuch’s expansive reading of the free exercise clause. Espinoza v Montana Department of Revenue led Gorsuch down precisely the same “use versus identity” path that he had staked out in Trinity Lutheran. In his concurring opinion in this latest school funding case, he asserts that the free exercise clause “protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” Thus, even as he agreed with the Court’s majority opinion, he simultaneously pushed his colleagues to view the longtime practice of denying direct government funding to overtly religious activities as a betrayal of the free exercise clause.
An important question follows from Gorsuch’s position in Espinoza. If the free exercise clause extends to all of the various things people feel compelled to do in service of their beliefs, at what point—if ever—is the government entitled to step in and restrict such actions? To this question, the Court’s other two church-state cases provide some startling insight.
In Our Lady of Guadalupe School v. Morrissey-Berru, the Court opted in a 7-2 majority to defer to the judgment of two Catholic schools on the question of which of its employees are performing “religious” work and are therefore not entitled to the same civil rights protections as “secular” employees. After agreeing with the Court’s decision, Thomas, joined only by Gorsuch, then took the considerably more radical step of asserting that the government shouldn’t merely defer to the schools in this particular case but should always defer to such organizations. As Thomas puts it, the very question of who is doing “ministerial” work within an organization is “an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.”
Thomas’ statement may seem unremarkable, but it has significant implications for a wide array of anti-discrimination protections: It opens the door to a world in which businesses are given the power to decide which of their employees receive the basic protections of statutes like the Americans with Disabilities Act and Title VII of the Civil Rights Act. In a world like this, an organization could fire someone because they have a disability, for example, or because they are LGBT, and the government would be helpless to scrutinize whether this dismissal was legitimately related to the religious mission of that organization.
This extreme level of deference to the self-determination of religious organizations is not unique to Thomas’ concurrence in Our Lady of Guadalupe; it is part of an underlying interpretive trend in which certain justices have shown themselves willing to accept even highly controversial claims from religious actors as long as those claims are sincere. This approach was on full display in the landmark 2014 Burwell v Hobby Lobby case, which exempted certain corporations from having to provide employees with contraceptive devices that they believe, contrary to expert opinion, to cause abortions. In the Court’s third recent church-state case, this understanding of free exercise was forcefully reiterated by Samuel Alito—joined by, of course, Neil Gorsuch.
In Little Sisters of the Poor v. Pennsylvania, Alito and Gorsuch stake out some of the same territory as Gorsuch and Thomas staked out in Espinoza. They urge the Court to refrain from entering into the realm of “moral questions,” which they deem uniquely inappropriate to legal analysis. In lieu of such legal scrutiny, they rule in favor of an across-the-board exemption for any business with religious objections to the use of particular contraceptive devices. The linchpin of this logic, as they remind their readers by way of multiple citations from Hobby Lobby, is the irrefutability of “sincere religious belief.” Courts, they assert, have no right to label religious claims “mistaken or insubstantial”; all they are equipped to do is determine whether claimants appear to be acting out of “an honest conviction” and, if they are, to subject the offending law to the highest level of scrutiny.
Ultimately, none of these cases offer a straightforward free pass to citizens with free exercise claims; the Court is often still obligated to weigh the public interest served by a contested government policy and the care with which the policy was crafted in the first place. What certain members of the Court have done in these recent cases, however, is to push for a reduction in the intensity of legal scrutiny that religious claimants receive—both in terms of the particular actions that get folded into the category of religious exercise and in terms of the criteria U.S. courts use to measure the burden being placed on a particular claimant. While Gorsuch is not the only justice pushing in this direction, this term’s trio of church-state cases shows him to be one of the Court’s most forceful and consistent promoters of this shift.
Jenna Reinbold is a PRRI public fellow and an associate professor of religion at Colgate University.