Is religious liberty “dismantling” progressive legal victories—or making them possible in the first place?

On reactions to the Supreme Court’s religious liberty decisions after Bostock

Sometimes history seems just “one damned thing after another.” Sometimes Supreme Court opinions seem that way, too.

The Court issues its decision one at a time, or maybe a handful in a day. We read the latest opinions on scattered subjects; if a particular case involves an issue we care about, then we declare victory or defeat—for that day, at least. Tomorrow will bring new wins and losses.

But the justices themselves experience something totally different. The case that they decide one day has been argued, drafted, deliberated, and decided within the Court’s walls over the course of months, all while the justices hear other cases’ arguments, draft other cases’ opinions, consider other cases’ newly arrived “cert” petitions, and so on.

And on top of all that, of course, justices with life tenure take the long view; they understand that a decision today will have real effects in days, months, and years to come.

I mention this at the end of the Court’s just finished term not to be pedantic, but because as I read much of the year-end analysis (and try to write some of my own), I’m struck by complaints about two of the Court’s religious liberty decisions.

The decisions, of course, are in Little Sisters of the Poor v. Pennsylvania, which affirmed religious organizations’ exemptions from contraceptive-coverage requirements under the Affordable Care Act; and Our Lady of Guadalupe School v. Morrisey-Berru, which affirmed religious schools’ First Amendment exemption from employment laws that would have restricted their ability to fire a particular teacher who is not furthering the school’s religious mission. Those decisions were both announced on July 8, and both were decided by strong 7–2 supermajorities.

Specifically, I’m struck by progressives who complain that these two decisions undermine the Court’s decisions a few weeks earlier, in Bostock v. Clayton County, where the Court concluded that the Civil Rights Act’s Title VII, which prohibits discrimination on the basis of “sex,” prevents employers from discriminating against people for the sexual orientation or gender identity; and in June Medical Services v. Russo, where the Court reaffirmed and reapplied a recent precedent limiting state regulations on abortion clinics.

Just days after those two decisions, when the Court announced its decisions a in Little Sisters of the Poor and Our Lady of Guadalupe School, progressive analysts promptly complained that the two new decisions would harm the earlier decisions. Prof. Leah Litman, for example, complained that “the justices just made clear just how they will go about limiting — if not outright dismantling — any judicial wins like these that the left ekes out”; the Court’s protection of religious liberty, she wrote, will “will whittle away the recent victories for LGBTQ rights and abortion.” Americans United for Separation of Church and State voiced similar concerns.

This framing of the Court’s work was not limited to ideologues or partisans; news reports framed the July decisions in similar terms. NBC News reported that the “Supreme Court’s religious employer ruling could weaken LGBTQ protections”; Bloomberg Law reported, similarly, “Religion, LGBT Rights Again on Collision Course at High Court.” The New York Times called Our Lady of Guadalupea setback for L.G.B.T.Q. workers, who just weeks ago gained protections under a federal employment-discrimination law.” And so on.

This blunt view of the July decisions threatening the June decisions might make sense if one takes each decision, one at a time, in the order that they are published. But given how the Court actually works, and how the Justices actually grapple with the many issues simultaneously before them (and on the horizon) at a given moment in time, here is a more realistic notion: the Court’s earlier decisions on sexual orientation, gender identity, and other issues might have been facilitated by the fact that religious liberty moderates their impact.

Stated another way, perhaps at least some of the justices in the Bostock majority—including its author, Justice Gorsuch, as well as Chief Justice Roberts and perhaps even others—might well have been made more comfortable announcing broadly that the Civil Rights Act protects gender identity and sexual orientation because they knew that some of the most significant ramifications of such a decision would be moderated by the protections of the First Amendment and the Religious Freedom Restoration Act.

We have seen this before, even recently, and on very similar issues. The same justice who wrote the Court’s opinions in the canonical LGBTQ-rights cases—Romer, Lawrence, Windsor, and Obergefell—completed the series with Masterpiece Cakeshop, protecting the rights of the religious baker who was being forced by state regulators to bake a bespoke cake for a same-sex wedding. Those cases were not a “collision” in the jurisprudence of Justice Kennedy; Masterpiece Cakeshop did not “dismantle” or “whittle away” rights protected in the earlier cases. Rather, Justice Kennedy’s opinion in Masterpiece Cakeshop made clear what his homosexual-rights opinions genuinely meant from the start. Indeed, Kennedy’s own opinion for the Court in Obergefell highlighted the importance religious liberty, an issue that surrounded and informed the Court’s consideration of the case from start to finish.

The inherent relationship between a body decisions, and the inherent limits of the earlier decisions, might have been harder to appreciate in Kennedy’s line of cases running over the course of many years. But it certainly should not be hard to see here, where Justice Gorsuch and his colleagues emphasized religious liberty in the Bostock decision itself, just days before the Court released its religious liberty decisions.

Simply put, the Court’s appreciation of religious liberty isn’t rolling back progressive legal victories. It may well be helping to make those victories, rightly understood, possible in the first place.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.