Religious Freedom Annual Review 2016 Friday Afternoon Plenary: Religious Freedom at the Supreme Court Now and in the Future

by Sarah Clifford

The Friday, 8 July 2016 afternoon plenary session, “Religious Freedom at the Supreme Court Now and in the Future”, featured two prominent attorneys, Hannah Smith, Senior Counsel, Becket Fund, and Gene C. Schaerr, Partner, Schaerr | Duncan, and Adjunct Professor, J. Reuben Clark School of Law, Brigham Young University. The speakers examined recent religious freedom battles won at the US Supreme Court level, and an optimistic outlook for future cases.

In her presentation, “The Roberts Court and Religious Freedom”’, Hannah Smith said that the Roberts Court has been largely protective of religious freedom. She provided both an overview of recent wins at the Supreme Court level and an illustration of how the justices have gone out of their way to demonstrate the breadth of protections to religious claimants. “There is a lot of reason to be optimistic, “ Ms. Smith said. 

Gene Schaerr in his presentation titled “What Will the New Supreme Court Do on Religious Freedom?” gave an overview of the beliefs and philosophies of individual justices on the Rehnquist and Roberts Courts regarding the protection of religious liberty. Mr. Schaerr presented justice by justice voting records on cases concerning private religiously motivated conduct and cases concerning the sexual revolution. He advocated for the creation of clear legislation concerning predictable religious freedom issues. Mr. Schaer said that while the Supreme Court usually votes to protect religiously motivated conduct, they are much less reliable when issues arise out of the sexual revolution. 

Cases cited in this session included Gonzalez v. O’Centra, Burwell v. Hobby Lobby, Little Sisters of the Poor v. Burwell, Stormans v. Wiesman, Trinity Lutheran Church v. Pauley, Holt v. Hobbes, Dale v. Boy Scouts of America, and CLS v. Martinez.