Traditional Christians must be willing to do the same in the coming years, to show society’s need for religious freedom and liberty of conscience. The cultural left in America, to which the courts respond, may be unyielding in its requirements that people be involved with sin, but if believers refuse involvement at any cost, there may eventually be accommodation. Stranger things have happened.

The second panel of the Alliance Defending Freedom presentation discussed in the previous article of this title concerned the possibility that the Supreme Court is changing, and possibly radically, its direction on religious liberty issues. This is believed to be the result of the death of Associate Justice Antonin Scalia and the probable appointment of two or three new justices to the Supreme Court in the coming administration. Kristen Waggoner, Senior Counsel and Senior Vice President of ADF, Staffan N. Johnson of the Winston & Strawn law firm, and Louise Melling, Deputy Legal Director and Director of the Center for Liberty of the American Civil Liberties Union, discussed this issue.

Rich Wolf of USA Today moderated the panel and began by noting that since the death of Justice Scalia the Supreme Court declined to hear possibly its most important religious liberty case on appeal, Storman’s vs. Wiesman, concerning Storman’s pharmacy in the state of Washington. The pharmacy has declined to stock abortion inducing drugs. Wolf noted the comment of Associate Justice Samuel Alito in dissenting from the decision not to hear the case, that “if this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

Waggoner said that on religious liberty, the nation and the courts are now “in pitched battle.” She said that the question is whether we will “permit the space” for those persons with convictions to “freely practice their religion, and be in the marketplace and earn a livelihood.” Will people have to give up their livelihoods in order to remain true to their faith? (as in the cases of the photographer Elaine Hugeunin in New Mexico and the florist Barronelle Stutzman in Washington state, who declined services contributing to homosexual behavior). Waggoner said that religious freedom gives people the freedom to search for and live out the meaning and value of life; it is the “external benchmark” as to what believers can and cannot do. Charitable work is part of this life conducted within religious boundaries. She said that religious freedom is empirically associated with prosperity and freedom. It is beneficial to civil liberties, she said. There is also an inconsistency, she maintained, in many people supporting the idea of conscientious objection to general laws based on moral principle in general, but rejecting it in areas of marriage and sexuality. This indicates people see the need for protecting conscience only on issues in which they agree with the morality which is objecting to the law. There is a great danger, she said, that the Supreme Court will “force ideological conformity” on sexual issues, effectively saying that sexual identity and behavior is most important in reaching justice, rather than religious commitments, which are most important in the lives of many Americans.

Supreme Court decisions in recent years have been supportive of “choice and tolerance” in religious issues. Such decisions include that concerning the Town of Greece vs. Galloway (allowing prayer at municipal meetings), Hosanna Tabor vs. the Equal Employment Opportunity Commission , which determined that religious bodies had a constitutional right to hire and fire clergy independent of antidiscrimination requirements , and Burwell vs. Hobby Lobby, which established closely held private corporations had religious freedom against contrary law and public policy under the Religious Freedom Restoration Act. All of these decisions exhibited the court’s concern for religious liberty. There is now great concern that the court will shift against religious liberty. Waggoner pointed out that in the Storman’s case, the State of Washington was clear that it was going after religious objectors, endeavoring to require them to violate their consciences. It might be added that this objective is dubious even under the Employment Division vs. Smith decision (1990), which denies religious freedom against law held to be “neutral and generally applicable.” Yet the State of Washington seems not to have been neutral in dealing with religious pharmacists. Waggoner said that the ninth justice to be appointed to the Supreme Court may decide the current conflict over religious liberty. A new liberal justice replacing Justice Scalia could well decide cases which will result in sending believers to jail and banishing them from entire professions. In the next year, there may be a “real shift” on the Supreme Court.

Johnson said that the glass is either “half empty or full.” The court has held (in the Smith decision) that “neutral, generally applicable law” cannot violate the First Amendment’s free exercise guarantee. But since then, the court has decided cases on particular religious liberty issues in favor of free exercise, although the Hobby Lobby was delivered by a divided court. The least restrictive means test, used both before the Smith decision and also under the Religious Freedom Restoration Act, mandates that however strong the interest of the government is, it includes accommodating believers.

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