Supreme Court docket shows growing role as arbiter of religious freedom

Oct. 4 (UPI) -- Cases being heard by the U.S. Supreme Court in the term that begins Monday could determine if clergy in Texas can lay hands on a condemned inmate in the moments before an execution and whether Maine parents can use public funds from a state tuition assistance program to send their children to religious schools.

Also on the docket are arguments about a Mississippi abortion law, an FBI operation that allegedly sent a paid informant into California mosques and a request to fly a Christian flag in front of Boston City Hall.

William Duncan, of the Sutherland Institute in Salt Lake City, Utah, says the Supreme Court has become the primary -- and nearly exclusive -- institution dealing with religious freedom issues in the United States.

"It was arguably the framers' intent for the legislative branch to play that role, but in the absence of protective legislation, in recent years the court has taken the responsibility to resolve important religious freedom conflicts over social services, parochial schools, education funding, etc.," Duncan writes in an article posted on the think tank's website that previews the Supreme Court term.

More religious liberty cases have been coming to the Supreme Court in the past few years, in part because of faith-based objections to a contraceptive mandate in the Affordable Care Act and complaints that churches were subjected to stricter COVID-19-related limitations than secular places, Duncan told UPI.

Organizations that litigate religious liberty issues are watching these cases:

Clergy access at executions

As his execution date approached this fall, Texas inmate John Henry Ramirez asked that a Southern Baptist pastor be allowed to pray aloud over him in the death chamber and lay hands on him.

The request was denied by prison officials, but Justice Samuel Alito granted a stay of execution on Sept. 8, the date Ramirez was scheduled to die by lethal injection, and the court is scheduled to hear arguments in the case later this fall.

The Texas Department of Criminal Justice allows a spiritual adviser to be in the death chamber but not to pray audibly or touch the inmate, which prison officials say would be a security risk.

A friend-of-the-court brief filed in Ramirez vs. Collier by the American Civil Liberties Union on behalf of a group of spiritual advisers and corrections experts who have collectively witnessed or overseen more than 50 executions says prohibiting audible prayer and the "laying of hands" is not necessary for security.

"As their experience makes clear, Texas has no good reason for restricting these basic religious practices at such a spiritually critical moment, and we hope the court agrees," Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, told UPI in an email.

In addition, the ban violates the Religious Land Use and Institutionalized Persons Act, according to the ACLU. The act prohibits regulations that impose a "substantial burden" on the religious exercise of prisoners unless the institution can demonstrate the rule serves a compelling governmental interest and is the least restrictive way to pursue that interest.

The Becket Fund for Religious Liberty filed a friend-of-the-court brief, arguing that the First Amendment and federal civil rights law require the TDCJ to allow prisoners meaningful clergy access in their last moments.

"Our country allowed clergy to minister to Revolutionary War traitors and Nazi war criminals at the gallows," Eric Rassbach, Becket vice president and senior counsel, said in a statement. "We have always given condemned prisoners the chance to get right with God not because of who they are, but because of who we are."

Money for a public education

Some rural areas in Maine do not have public secondary schools, so the state uses tax dollars for students' tuition at a private school. A provision in the law does not allow this aid to be used at a sectarian school that provides religious instruction.

The parents of three children filed suit alleging that the exclusion of schools violated their religious freedom rights. After a federal judge found in favor of the state and an appeals court upheld that decision, the case, Carson vs. Makin, went to the Supreme Court.

Mark Rienzi, Becket president, which filed a friend-of-the court brief in support of the families, said the Constitution allows people to freely exercise their religion without government excluding them from a program "that everyone else can participate in."

"The government here is allowing all sorts of secular schools to participate with very few limitations," Rienzi said in a Sept. 14 phone briefing with the news media about Supreme Court cases. "As long as they're accredited, you can participate, but they are excluding just the religious ones, and I don't think the court is likely to allow that."

Lawyers for the state say in a court brief that the private schools participating in the tuition aid program are entrusted with providing a public education that would otherwise be unavailable.

"Maine has an interest in ensuring that the instruction students receive at these private schools is the substantive equivalent of what students would have received if they attended a public school," the brief says. "Accordingly, Maine law permits only nonsectarian schools to receive public funds for tuition purposes. To be clear, religious organizations that are willing to provide a nonsectarian education (i.e., an education comparable to the education students would receive if their community operated a public school) are eligible to receive public funds through Maine's tuition program."

Prohibitions on abortion

In Dobbs vs. Jackson Women's Health Organization, the Supreme Court will tackle the issue of whether prohibitions on elective abortions before the fetus is viable are unconstitutional.

The Gestational Age Act, which was enacted by Mississippi in 2018, bans abortions after 15 weeks of pregnancy except in medical emergencies or cases of severe fetal abnormality. Supporters of the legislation say the law protects the health of mothers, the dignity of unborn children and the integrity of the medical profession and society.

Jackson Women's Health Organization, the only licensed abortion facility in the state, and its medical director filed suit on behalf of themselves and their patients challenging the law as unconstitutional. A federal trial court judge found in favor of the clinic and issued an injunction stopping enforcement of the law.

After the 5th U.S. Circuit Court of Appeals affirmed the decision, Mississippi appealed to the Supreme Court.

Jackson's Women's Health Organization argues in a court brief that Roe vs. Wade, the 1973 U.S. Supreme Court ruling that recognized a right to an abortion, and an unbroken line of court decisions over the past 50 years "are clear that, before viability, it is for the pregnant person, and not the state, to make the ultimate decision whether to continue a pregnancy."

Viability typically occurs at 23 to 24 weeks, according to the brief.

About 150 friend-of-the court briefs have been filed in the case, with some supporters of the law arguing that medical and scientific advances require reconsideration of the viability line. The Fifth Circuit ruling upholding the trial court decision "treats the right to pre-viability abortion as absolute such that no state interest could ever justify any limitation of abortion pre-viability," a brief by 19 states, led by Texas, says.

"But no other constitutional right enjoys such absolute unquestioning protection," the brief says.

Some opponents of the ban argue that the Mississippi law is motivated by religious ideology. The Freedom From Religion Foundation says in a brief that "doing away with the viability framework and asking courts to weigh state interests will require courts to address the underlying purpose of abortion bans -- to enshrine into civil law a religious belief about when personhood begins."

"As a personal matter of conscience, the state may not compel obedience with a religious belief on when 'personhood' begins. It may be a strongly held religious belief for the minority of Americans who oppose legal abortion, but it is not an appropriate legislative purpose or interest," the brief, which is joined by the Center for Inquiry and American Atheists, says.

Government surveillance

Fifteen years after the FBI allegedly sent a paid informant to mosques to spy on members of California's Muslim community as part of a counterterrorism operation, the justices are slated to hear arguments on whether a court can consider religious discrimination claims in a lawsuit filed by a religious leader and two congregants against the bureau and five officers.

The suit alleges the informant posed as a convert to Islam and indiscriminately gathered names, emails and information about the religious beliefs of hundreds of people based on their faith. The defendants say their constitutional rights to the free exercise of religion were violated by the surveillance, which took place in 2006 and 2007.

The defendants said they would need to use certain evidence to defend themselves, but introducing it would reveal state secrets. A federal district court dismissed most of the lawsuit but the 9th U.S. Circuit Court of Appeals reversed the dismissal of the claims.

The 9th Circuit ruled the Foreign Intelligence Surveillance Act required the district court to review whether the surveillance was lawfully authorized and conducted.

The FBI appealed, arguing that the court's inquiry itself, including any requests for additional information, could reveal the nature of the information the government provided.

"Such disclosure of state secrets and any concomitant damage to the national security would be irreparable," the FBI says in a court filing.

The ACLU Foundation of Southern California, which represents the plaintiffs, says FBI vs. Fazaga, likely will result in a landmark decision on religious freedoms.

"Our system of checks and balances requires that courts be open to hearing claims that the government has violated the constitution," Mohammad Tajsar, senior staff attorney with ACLU of Southern California, said in a statement. "The government shouldn't be able to avoid accountability for unconstitutionally targeting U.S. citizens and permanent residents for surveillance in their homes here in the U.S. because of their religion, simply because they say the violations were part of a counterterrorism investigation."

Flying Christian flag

Camp Constitution and its director are asking the Supreme Court to overturn a ruling that rejected their request to fly a Christian flag on a Boston City Hall flagpole.

The group was planning to raise the flag in celebration of Constitution Day and Citizenship Day in September 2017 but the city refused, saying it has a policy to refrain from flying non-secular flags. The decision was based on the First Amendment's prohibition of government establishment of religion, according to a Boston official.

Camp Constitution director Hal Shurtleff said other flags that have been raised on city poles have religious imagery, such as the Turkish flag, with the star and crescent of the Islamic Ottoman Empire. The Christian flag is white with a red Latin cross inside a blue square in the upper corner.

A trial court judge found in favor of Boston and the 1st U.S. Circuit Court of Appeals upheld that decision, ruling the city could act on legitimate concerns about excessive entanglement with religion.

Requests to be put on the docket

Still pending are decisions by the justices on requests to hear other appeals.

In one of the cases, Dignity Health vs. Minton, a Catholic hospital in San Juan, Calif., is accused of refusing to perform a hysterectomy because of a patient's gender identity, amounting to sex discrimination. The surgery was canceled the day before it was to be performed, allegedly because a nurse learned the patient is a transgender man.

The hospital says it cannot allow abortions, sterilizations or euthanasia to be performed in its facilities. Dignity Health says it performs hysterectomies only in medically necessary circumstances and the patient wanted a healthy uterus removed as part of a gender transition.

A trial judge dismissed the suit, but the California Court of Appeal reinstated it.

In Diocese of New York vs. Emami, a coalition of religious groups is challenging a state mandate requiring them to cover abortion in their employee health insurance plans. The litigants include Roman Catholic dioceses, Anglican nuns, Baptist and Lutheran churches and Catholic ministries.

The only exemptions from the mandate are for religious entities whose purpose is to inculcate religious values and who primarily employ and serve coreligionists, according to Becket, which represents the coalition.

The case went to the Supreme Court after the coalition lost at the New York courts.