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Religious Liberty 2020-2021 and Beyond: What is Next for Churches & Nonprofits?

U.S. Supreme Court

Religious Liberty 2020-2021 and Beyond: What is Next for Churches & Nonprofits?

By Robert Showers, Esq. and William Thetford, Esq.

February 11, 2022

Religious Liberty Shifts

In 2020 and 2021, during the height of the COVID-19 pandemic, the U.S. Supreme Court made several rulings that signal where religious liberty may be going in this nation, which gave many churches and religious entities encouragement for the future. Of course, the confirmation of Justices Gorsuch, Kavanaugh, and Barrett arguably swung the majority to a more conservative posture. (Five or six out of the nine justices have favored religious liberty in previous rulings.) Though this shift did not clearly reveal itself in the unanimous decision in Fulton v. Philadelphia, 141 S.Ct. 1868 (2021) or the 8-1 decision in Mahanoy Area Sch. District v. B.L., 141 S.Ct. 2038 (2021), the concurrences and dissents in these cases, as well as Supreme Court cases in 2020, illustrate this shift that bodes well for the future of religious freedom in this country.

          1. Smith Stays, For Now

Fulton v. Philadelphia upheld the rights of Catholic Social Services (CCS) not to place foster children with same-sex couples or unmarried heterosexual couples, as required by their religious beliefs. CSS instead referred those couples to many of the other foster care organizations in the area. When Philadelphia denied CCS’s contract, due to CSS’s violation of LGBTQ+ rights under the City’s anti-discrimination provisions in the foster care agreement, the Third Circuit upheld the City’s decision under alleged neutral and generally applicable laws according to Employment Division v. Smith, 494 U.S. 872 (1990). The U.S. Supreme Court unanimously overturned the Third Circuit’s decision (without overruling Smith), stating:

CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.[1]

Interestingly, the Court avoided confronting the Smith test. Court watchers, scholars and Supreme Court practitioners were baffled by the court averting what appeared to be a perfect opportunity to re-examine and overturn Smith, since a majority desires to do so.[2] The Smith test is: As long as a neutral law is generally applicable to all, even if it incidentally burdens religious organizations, practices, groups, etc., the law is not subject to strict scrutiny under the First Amendment’s Free Exercise Clause.[3] Justice Alito shared his frustration and predicted that the Court would need to address this issue later:

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CCS to give in, and if the City wants to around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this court challenging Smith.  What is the point of going around in this circle?[4]

Justice Alito believes that the Smith test should be replaced by “a law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.”[5] This articulation is the very test that controlled prior to Smith, as outlined earlier in Sherbert v. Verner, 374 U.S. 398 (1963), and later by the Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. § 2000bb-1 (enacted in 1993 to restore religious rights undermined by Smith).

Furthermore, Justice Gorsuch, in his concurring opinion joined by Justice Thomas, underscores six out of the nine justices already question the constitutional sufficiency of the Smith test. He cites Justice Alito’s comprehensive seventy-seven-page concurring opinion on why Smith should be overruled, and concludes with this question: “So what are we waiting for?”[6]

Although newly appointed Justice Barrett, joined by Justice Kavanaugh, also suggested that the case for overturning Smith is “compelling,” she expressed concern about what standard would replace Smith’s rational basis standard. Justice Barrett indicated there were four questions that needed to be considered for any standard that would replace Smith:

    1.  Should churches and their auxiliaries (like CSS) be treated differently from individuals?
    2.  “Should there be a distinction between indirect and direct burdens on religious exercise?”
    3.  “What forms of scrutiny should apply” – a “compelling” interest, “substantial” interest, or something else?
    4.  If strict scrutiny is applied, “would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?”[7]

It appears that this Court will have to address and overrule Smith, which is good news for religious liberty.[8]

           2. Student’s Freedom of Speech Protected

In Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021), the Court addressed a public school’s conduct policy for students not on campus. The Court held that the school violated a cheerleader’s free speech rights when she was suspended for using profane speech on Snapchat. The Court recognized three categories of student speech that the secular school could regulate: (1) indecent, lewd, or vulgar speech uttered in school assembly on school grounds; (2) speech uttered during a class trip that promotes illegal activity; and (3) speech that others reasonably perceive as bearing the imprimatur of the school, such as writings in school-sponsored publications. In this case, the student’s speech involved criticism of the team, coach, and school and, although it was vulgar, it was not obscene; therefore, it was protected speech.

However, students, parents, and educators should take note that the ruling in this case would likely be very different for private schools or religious institutions. Private Christian schools can impose stricter conduct standards since they are not governmental entities, often are not supported by government funds, and parents and students sign specific Biblical conduct and statement of faith documents to enroll the student in the Christian school. Furthermore, if the conduct standards are tied to the school’s religious values, the Christian school has the right to enforce such strict standards. Students have very few First Amendment protections against the Christian school in that scenario.

Seven Important Religious Liberty Cases from the 2020 Term

During the 2020 U.S. Supreme Court term, the Court ruled on a number of religious liberty cases:

  1. Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020);
  2. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020);
  3. Little Sisters of the Poor v. Pennsylvania, 140 S.Ct. 2367 (2020);
  4. Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020);
  5. South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020);
  6. Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603 (2020); and
  7. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020).

Each case will be briefly explained in the following paragraphs. There is important case theory here and one or two potential legal tests, which help predict where the court is headed on religious liberty rulings in the next few years. 

           1. Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020)

 In a 5-4 decision, the Court reversed a Montana law that excluded religious schools from a tax-credit program. The program allowed tax credits to state taxpayers who donated money to private scholarship organizations that distributed scholarships to children to attend private schools. Chief Justice Roberts, in the opinion of the Court, held that, for an educational program with a secular purpose, the Free Exercise Clause of the First Amendment requires that the program be available without regard to the religious status of the service provider. While Espinoza’s ruling is limited to status-based religious discrimination, it is clear that a state cannot enact a law or program that deliberately discriminates against a religious school or an individual on the basis of religious status.

Montana is one of thirty-seven states with “no-aid provisions” (also known as “Blaine Amendments”), which prohibit public funding for religious institutions. The Court’s decision expands Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), wherein the Court stated that a childcare center could not be denied a Missouri grant to pay for new playground surface to enhance child safety because it was operated by a church. Thus, Espinoza expands prohibition of discrimination based on religious status and calls into question the constitutionality of Blaine Amendments. Chief Justice Roberts effectively stated that such amendments cannot be enforced when they are directed at prohibiting government funding based on the religious character or status of the recipient. Justice Gorsuch, in his concurring opinion, argued that any distinction between religious status and religious use makes little sense after this decision.[9]

           2. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020)

The Court reversed the Ninth Circuit Court of Appeals’ decision 7-2 by ruling that the two elementary teachers who sued their Catholic school on the grounds of age and disability discrimination were ministers for the purposes of the ministerial exception. This ruling confirms that the Free Exercise and Establishments clauses prohibit civil authorities from ruling on a dispute between the religious school and the teachers.[10]

Justice Alito, writing for the 7-2 Court, stated:

What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school . . . .
. . . .
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.[11]

While some commentators argue that the decision is not an expansion of the earlier Hosanna-Tabor ruling, but is just an application consistent with how the lower courts have interpreted Hosanna-Tabor, the bottom line is that employees who fall within the ministerial exception include most elementary teachers in religious schools because they teach the whole curriculum, including its religious applications and implications. If religious school and church employers emphasize the religious aspects of all curricula and their religious implications, most or all employees will fall within the ministerial exception.[12]

Note that the “ministerial exception” is not perhaps the best name for the First Amendment doctrine, since it extends far beyond what most people would colloquially call “ministers,” and applies in religious settings where religious clergy go by a title other than “minister.” The so-called “ministerial exception” is itself a part of the broader line of precedents sometimes called “Church Autonomy Doctrine.”[13]

           3. Little Sisters of the Poor v. Pennsylvania, 140 S.Ct. 2367 (2020)

On Little Sisters’ third trip to the U.S. Supreme Court (and after losses in the Third and Ninth Circuits), Justice Thomas, writing for the 5-2-2 majority, ruled in their favor on the grounds that HHS had proper authority under the Affordable Care Act and RFRA to provide for a broad religious and moral objection.[14] This case is significant because it was a correct interpretation of RFRA’s phrase “substantial burden” and it rejected the theory that the government could only extend a religious exemption that was required by RFRA. Moreover, it provided good arguments for RFRA to counter acts presently before Congress, such as The Equality Act of 2021, H.R. 5, 116th Cong. (1st Sess. 2021),[15] and the Do No Harm Act, H.R. 1450, 116th Cong. § 593 (2019).[16]

           4. Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020)

 Unfortunately for many religious employers, the Court, in a 6-3 decision written by Justice Gorsuch, held that Title VII’s prohibition of sex discrimination includes discrimination based on sexual orientation and gender identity. Justice Gorsuch wrote:

At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”[17]

Justice Alito, joined by Justice Thomas, dissented: “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[18] Justice Kavanaugh also dissented: “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”[19]

What are Bostock’s implications for religious liberty? Will Title VII’s strong protections for religious employers be upheld in future decisions?[20] Some liberal commentators argue that while Title VII defines religion broadly, it is not without limits. The religious employer’s right to hire employees of a particular faith is limited; furthermore, Title VII does not clearly protect a religious employer’s right to impose standards of religious conduct on employees.

Moreover, Bostock did not address the Religious Freedom Restoration Act (RFRA), enacted to restore religious liberty protections weakened by Employment Division v. Smith. RFRA provides more religious freedom protection against federal overreach than the First Amendment.[21] What impact, if any, will this decision have on RFRA?

In the past three years, the Court has issued three strong rulings in which the Free Exercise Clause is re-awakening: Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017); Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020) and Fulton v. Philadelphia, 141 S.Ct. 1868 (2021). These decisions are good news for RFRA. Our Lady of Guadalupe School v. Morrissey-Berru held that judges are not competent to sort through religious doctrine when a religious institution decides whether to hire or retain someone as a minister or teacher. Even if the case involves race, sex, or other protected classes, the courts under Our Lady of Guadalupe School must respect the autonomy of religious organizations and allow them to make necessary decisions regarding employment of the persons who lead their worship or teach their doctrine.

          5. South Bay United Pentecostal Church (Tandon) Newsom, 140 S.Ct. 1613 (2020); Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603 (2020); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020)

 These cases were among the many cases before the Supreme Court that dealt with emergency relief for COVID-19 public health and safety issues. Each state’s executive order was unique, so these decisions have limited precedential value. The first two decisions were 5-4 in favor of the state. In Tandon and Calvary Chapel, Justices Alito, Thomas, Gorsuch, and Kavanaugh dissented. The majority gave great deference to states’ declaration of emergency, by noting that courts “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”[22] The four dissenters, while they recognized the compelling interest in combating the spread of COVID-19 and protection the health of its citizens, said that California and Illinois did not provide a compelling justification for applying different standards to churches than secular businesses.

These decisions were made on emergency motions for relief pending analysis of the merits in lower courts; thus, the ultimate precedential impact on lower courts remains to be seen. Even Chief Justice Roberts acknowledged that these were not normal cases with normal analyses, since emergency injunctive relief demands a significantly higher justification than simply addressing the merits once fully before the Court, and his reasoning may change in a non-emergency posture.

The third case, slightly later in the pandemic, reached a different result: the Court ruled in favor of the religious claimants in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020). The Court enjoined New York from enforcing COVID-19 restrictions against the plaintiffs, Catholic churches and Jewish synagogues. They noted that New York mandates imposed severe restrictions on churches while imposing no restrictions on certain “essential” businesses, including hardware stores, acupuncturists, liquor stores, bicycle repair shops, accountants, law offices, and insurance agents. Two things changed between this decision and Tandon and Calvary Chapel. First, Chief Justice Roberts dissented, arguing to defer to states on emergency issues of public health and safety. Second, Justice Barrett provided the crucial fifth vote that completely changed the Nine’s inclination towards churches and religious entities.

California, New York, Illinois, and many other states significantly loosened their restriction on church gatherings after churches sought court relief especially from the U.S. Supreme Court.


These recent precedents give reason for optimism for churches and religious nonprofits. Even in areas where religious entities find the culture opposed to their beliefs, First Amendment law has thus far remained firmly in support of religious liberty.

Churches and nonprofits should be aware, however, that positive precedents protecting religious liberty are still heavily dependent on the facts of individual cases. Entities that are consistent in living out their faith and are well-prepared to back it up stand in a much better position to have their First Amendment rights protected by the courts.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at hrs@simmsshowerslaw.com, William Thetford at wrt@simmsshowerslaw.com or Jonathan Monroe at jem@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] Fulton v. Philadelphia, 141 S.Ct. 1868, 1882 (2021).
[2] Kim Colby, Symposium: Free Exercise, RFRA, and the need for a constitutional safety net, SCOTUSblog (Aug. 10, 2020, 11:20 AM), https://www.scotusblog.com/2020/08/symposium-free-exercise-rfra-and-the-need-for-a-constitutional-safety-net.
[3] Emp’t Div. v. Smith, 494 U.S. 872, 878-882 (1990).
[4] Fulton, 141 S. Ct. at 1888 (Alito, J., concurring).
[5] Id. at 1924.
[6] Fulton, 141 S. Ct. at, 1931 (Gorsuch, J., concurring).
[7] Fulton, 141 S. Ct. at 1883 (Barrett, J., concurring).
[8] See also Kim Colby, CLS’ Religious Freedom Toolkit, Christian Legal Society (2021),  https://www.clsreligiousfreedom.org/resources/religious-freedom-toolkit; Thomas C. Berg, Religious Freedom Amid the Tumult, 17 U. St. Thomas L.J. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675627.
[9] See also Thomas C. Berg & Douglas Laycock, Espinoza, Government Funding, and Religious Choice, J. of L. and Religion (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
; Thomas C. Berg & Douglas Laycock, Symposium: Espinoza, funding of religious service providers, and religious freedom, SCOTUSblog (July 1, 2020, 6:22 PM), https://www.scotusblog.com/2020/08/symposium-free-exercise-rfra-and-the-need-for-a-constitutional-safety-net.
[10] Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S.Ct. 2049 (2020).
[11] Id. at 2064.
[12] See also Thomas C. Berg, et al., Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception, 20 Federalist Soc’y Rev. 182 (2020).
[13] For more information on the Church Autonomy Doctrine and Ministerial Exception see Carl H. Esbeck, An Extended Essay on Church Autonomy, 22 Federalist Soc’y Rev. 244 (2021) https://fedsoc.org/commentary/publications/an-extended-essay-on-church-autonomy.
[14] Little Sisters of the Poor v. Pennsylvania, 140 S.Ct. 2367, 2373 (2020).
[15] Full text of The Equality Act of 2021: https://www.congress.gov/bill/116th-congress/house-bill/5/text.
[16] Full text of the Do No Harm Act: https://www.congress.gov/bill/116th-congress/house-bill/1450/text.
[17] Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1743 (2020) (citing Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2018)).
[18] Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1755-6 (2020) (Alito, J., dissenting).
[19] Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1832 (2020) (Kavanaugh, J., dissenting).
[20] Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-(2)(a)(2) (1964).
[21] RFRA protects religious freedom by requiring the government to demonstrate a compelling interest that cannot be achieved by a less restrictive means before a government action may impose a substantial burden on an individual’s (or institution’s) sincerely held religious exercise.
[22] S. Bay United Pentecostal Church (Tandon) v. Newsom, 140 S.Ct. 1613, 1614 (2020) (Roberts, C.J., concurring).
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