Justices for all

Rodney King offered a plaintive plea in the spring of 1992, hoping to quell deadly riots in Los Angeles. “People,” he said, “can we all get along?”
A more sophisticated form of King’s plea may be at the heart of an unusual number of U.S. Supreme Court decisions this term that impact religious liberty: Can Americans find a way to live together despite sharp differences in religious beliefs? A majority of the court justices seem to be charting a middle course they hope will settle that question.
Conservatives were shocked in June when the court interpreted Title VII of the Civil Rights Act of 1964 to bar the firing of an employee based on sexual orientation or gender identity. Even though its ruling only addressed private employers, many observers worried the 6-3
Two more recent developments will test that prediction. On July 20, 22 states and the District of Columbia, citing Bostock,
But despite Bostock, a trio of decisions near the end of the Supreme Court’s term signaled strong support for religious liberty among a majority of the justices. These decisions may offer a safe harbor to those with religious convictions.
In Espinoza v. Montana Department of Revenue, the court
In Little Sisters of the Poor v. Pennsylvania, the court
And religious schools were heartened by a
While these decisions aren’t groundbreaking, together they reaffirm a constitutionally protected sphere of religious autonomy and liberty—a sense that people, gay or religious, must be free to act upon their deepest convictions. Private employers with religious convictions must still reckon with Bostock’s holding, yet churches and religious institutions are being bolstered by the court’s affirmation of religious freedom.
“The court has signaled that religious liberty is a crucial part of maintaining a pluralistic society in which people can coexist with deep differences,” says Thomas Berg, a constitutional law scholar at the University of St. Thomas School of Law in Minneapolis. Berg notes that while the court in Bostock extended civil protections to gay, lesbian, and transgender persons, the majority in that case said it remained “deeply concerned” about protecting the rights of religious organizations.
Two cases to be argued in the court’s term beginning in October offer the justices opportunities to further strengthen religious liberty.
In Fulton v. City of Philadelphia, the court will determine whether the city can cut ties with Catholic Social Services over the organization’s faith-based objection to placing foster children with same-sex couples. The city is relying on a neutral public accommodations law that bars most businesses from discriminating based on sexual orientation or gender identity. The court’s ruling in Espinoza suggests it may similarly rule that Philadelphia cannot discriminate against religious agencies.
In the other case, State of Washington v. Arlene’s Flowers, Inc., the court will consider whether the state can punish florist Barronelle Stutzman for her Biblical beliefs about marriage, which preclude her from making custom floral arrangements for a same-sex wedding. The state cited Stutzman for violating a public accommodations law barring discrimination based on sexual orientation or gender identity.
With these religious liberty cases, the court is dealing with deeply polarizing issues that Congress, also polarized, is unable to resolve, says Berg: “A key historical purpose of religious liberty is to reduce cultural conflict by giving people assurance that their deep commitments will be protected.”
Societal peace may be beyond the purview of the Supreme Court. But a majority of the justices appear to be attempting some measure of judicial peace—and hoping we can all get along.