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Attorney Lori Windham, an Abilene Christian University graduate and Church of Christ member, represented the plaintiffs in the Fulton case.
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Putting the ‘exercise’ in free exercise

Three recent precedents have 'really increased the amount of protection for religious freedom.'

In recent years, the Supreme Court has shown a greater willingness to protect the First Amendment right of free exercise of religion from state and municipal regulation.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, the court decided Colorado had shown an animus toward religion by punishing a baker for refusing to bake a cake for a same-sex wedding.


Related: Foster care and adoption ministries praise ruling in Fulton v. Philadelphia


And this year, before the Fulton v. Philadelphia foster care decision, the court overturned two state responses to the COVID-19 pandemic that restricted church and synagogue gatherings. In cases involving California and New York, the court said 5-4 that the rules violated the First Amendment because they did not apply equally to secular activities.

Lori Windham, the Washington, D.C., attorney who argued the Fulton case before the court, said the decision has given religious ministries another level of protection. 

“We already knew from the Masterpiece Cakeshop case that if government is going to discriminate against you, that violates the free exercise clause,” said Windham, an Abilene Christian University graduate who attends the Fairfax Church of Christ in Virginia. “We now know from the COVID cases that if they’re going to just fail to regulate similar secular activity that you’re going to be protected. 

“And we know from Fulton that if they have a lot of discretion to decide how the law applies that you’re going to be protected,” she said. “Between those three precedents, this has really increased the amount of protection for religious freedom.”

Lori Windham

Lori Windham

Those victories cap a series of confounding and often conflicting cases that had created a level of ambiguity among legal scholars and religious rights advocates:

Reynolds v. U.S. (1889). The Supreme Court first interpreted the First Amendment’s free exercise clause 130 years ago, holding that federal law could proscribe bigamy, even in Utah, where the Church of Jesus Christ of Latter-day Saints saw the practice as a matter of doctrine. The court there distinguished between belief, which could not be curtailed by the state, and action that was based on that belief, which was subject to seemingly blanket legal restrictions.

Sherbert v. Verner (1963). Reynolds was altered in a case involving a Seventh-day Adventist who was fired for refusing to work on Sundays. The court said the state couldn’t deny unemployment benefits to the woman who was acting on her religious beliefs unless it could show it was advancing a “compelling government interest” and that the regulation was “narrowly tailored” to achieve that interest. That legal concept is called “strict scrutiny.” 

Employment Division of Oregon v. Smith (1992). The court pared back Sherbert’s protections, holding that two Native Americans in Oregon who were fired for ingesting peyote weren’t eligible for unemployment compensation — even though they used the illegal and hallucinogenic plant as part of their membership in a church. Writing for the majority, the late Justice Antonin Scalia said religious groups must comply with a valid law that applied neutrally to religious and nonreligious alike. To do otherwise “would open the prospect of constitutionally required exemptions from civic obligations of … every conceivable kind.”

Religious Freedom Restoration Act (1993). A bipartisan Congress responded to the Smith decision by passing the RFRA, which now requires any federal law that materially infringes on the free exercise of religion to meet the “strict scrutiny” standard.

Burwell v. Hobby Lobby Stores (2014). Interpreting the RFRA, the court held a privately owned company could not be forced to provide a type of contraception it considered to be abortion in violation of sincerely held religious beliefs. But the court later held the law protects organizations only from federal action, leaving open just how much protection religious nonprofits and others have from regulation by state and local governments.

KENNETH PYBUS is an associate professor and chair of journalism and mass communication at Abilene Christian University in Texas and a First Amendment lawyer.

Filed under: Adoption Becket children's homes foster care Fulton v. Philadelphia Lori Windham National News Partners religious freedom religious liberty same-sex marriage Supreme Court Top Stories U.S. Supreme Court

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