On Tuesday, the New York Times ran an op-ed by Supreme Court reporter Linda Greenhouse, “On Contraception, It’s Church Over State.” In her piece, Greenhouse bemoans the Trump administration’s recent decision to grant moral and religious objectors an exemption from Obamacare’s birth-control mandate:
The real point is that the Trump administration has outsourced a crucially important building block of national health care policy, enabling a fanatical fringe of the Republican base to exercise raw political power, clothed in religiosity under cover of the grandiloquently named Religious Freedom Restoration Act. That 1993 law, passed by overwhelming bipartisan majorities and signed by President Bill Clinton, is the object of growing buyer’s remorse on the part of liberal and moderate Americans — and should be.
Conservatives are well aware of this shift in support for religious liberty, having seen recent attempts by states to pass analogous religious-freedom laws stalled or defeated. But there is a greater threat to religious liberty that, to date, has gone largely unnoticed: Liberal organizations are engaged in a concerted effort to strike down or limit religious accommodations by claiming that such laws violate the establishment clause of the Constitution.
The establishment clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” While historically the establishment clause was interpreted as merely preventing Congress from establishing a state religion, the Supreme Court has long since abandoned that approach. Instead, for over 45 years, the courts have applied the Lemon test, named after the Supreme Court case from which it sprang, Lemon v. Kurtzman. Under the Lemon test, to be valid, a law must serve a secular purpose, not advance or inhibit religion, and not result in an “excessive government entanglement” with religion. A law that fails to meet any of these three conditions violates the establishment clause.
These cases are not a fluke. They represent the Left’s latest strategy for attacking religious liberty.
The ACLU took this tack in its recently filed legal challenge to the Trump administration’s decision to exempt religious organizations from Obamacare’s contraceptive mandate. In its complaint, filed in a federal district court in California, the ACLU argued that, by providing a religious exemption, the government is advancing religion in violation of the establishment clause.
Likewise, several weeks earlier the ACLU cited the establishment clause in Dumont v. Lyon, in which it is challenging a Michigan law giving religious child-placement organizations the right to place children in adoptive and foster families that conform to their beliefs. The ACLU claimed that Michigan’s “practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies’ religious beliefs” violates the establishment clause.
This same establishment-clause argument has also been used recently to challenge a defense of the RFRA in EEOC v. R.G. & G.R. Harris Funeral Homes, which is currently pending before the United States Court of Appeals for the Sixth Circuit. In that case, the EEOC sued Harris Funeral Homes for sex discrimination after the owner fired a male employee who wished to “present” at work as a woman and wear a dress, in violation of the company’s dress code. At the district court level, the employer avoided liability for sex discrimination based on the protections guaranteed by the RFRA. On appeal, the transgender employee sought to overturn the lower court’s decision by arguing that exempting Harris Funeral Homes from liability under the RFRA violates the establishment clause.
These cases are not a fluke. They represent the Left’s latest strategy for attacking religious liberty. Current case law, however, suggests that such a strategy will fail. The Supreme Court “has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” While the Court has also noted that “at some point, accommodation may devolve into ‘an unlawful fostering of religion,’” such cases are the outliers. For instance, the Court has already upheld the Religious Land Use and Institutionalized Persons Act (RLUIPA) against a challenge on establishment-clause grounds. (RLUIPA is a corollary to RFRA that applies to state zoning laws and prison regulations.)
What’s more, where the government has created the burden on religious liberty, which is the case, for instance, with Obamacare, under the Court’s current jurisprudence, religious accommodations are unlikely to violate the establishment clause. But with buyer’s remorse setting in, liberals are shopping for a better deal — and soon we will know whether they can get it.
— Margot Cleveland is a lawyer, CPA, stay-at-home mom, and former full-time faculty member and current adjunct professor at the University of Notre Dame’s Mendoza College of Business.