J. Reuben Clark Law Society

Religious Freedom at the Supreme Court and Where I Live

Religious Freedom was a recurring theme at the JRCLS 2016 Annual Conference. Lecturers taught attendees about religious freedom case law at the U.S. Supreme Court, offered suggestions about how participants could promote religious freedom in their own communities, and explained why religious freedom is important.


The opening plenary session on Friday, February 12, 2016, “Religious Liberty at the Supreme Court: The Little Sisters of the Poor and Religious Conscience” was given by a dynamic group of three: Hannah C. Smith, Senior Counsel, The Becket Fund for Religious Liberty, John C. Eastman, Professor and Former Dean, Dale E. Fowler School of Law, Chapman University, and Steven D. Smith, Professor University San Diego School of Law, who directed the session and took questions from the audience.


Just a day before the unexpected death of Justice Antonin Scalia, Hannah Smith expressed optimism about religious freedom jurisprudence by the Roberts’ court, and cited several examples from 2006 until now. Namely, the 2006 case of Gonzales vs. O Centro, which was the first case decided under the Religious Freedom Restoration Act (RFRA), a federal statute that provides a test for whether a law places an undue burden on a person or organization’s religious beliefs. The Court held 9-0 that the government failed to show a compelling interest in barring a minority religious group’s sacramental use of hoasca, a hallucinogen banned by federal drug laws. Other favorable examples include the 2012 case Hosanna Tabor v. EEOC, the 2014 case Burwell v. Hobby Lobby, the 2014 case Town of Greece v. Galloway, and the 2015 case Holt v. Hobbs.


John Eastman took a dimmer view of the Supreme Court’s religious freedom jurisprudence than what Hannah Smith did, arguing that although there are several cases favoring religious freedom, the few that don’t have far more lasting impact than those that do. Eastman cited Obergefell v. Hodges, the 5–4 decision that legalized same sex marriage.  He expressed his concern that believers would be facing more “Sir Thomas Moore moments” in the future because religious freedom will be increasingly curtailed due to Obergefell and other, future court decisions that are expected to follow.


Currently before the U.S. Supreme Court is the case Little Sisters of the Poor v. Burwell. The Little Sisters of the Poor is an organization of nuns who literally beg for money to help impoverished elderly people. The Affordable Care Act requires all U.S. insurance plans to cover contraceptives at no cost to patients. Employers’ insurance plans must provide coverage for contraceptives. The Little Sisters of the Poor objected to this requirement on the basis that purchasing contraceptives violates their fundamental religious beliefs. The government claims to have provided an accommodation to this objection; that Little Sisters could submit a form to the government, which would then prompt a third-party organization to provide the coverage instead. Little Sisters renewed their objection, asserting that completing the form still violates their religious beliefs because it amounts to “complicity,” a Catholic doctrine where a person who cooperates in some way with the wrongful act of another is as guilty as the person committing the act.  (The wrongful act objected to by the Little Sisters being the purchase and distribution of contraception.) The Supreme Court will decide under RFRA whether or not the law places an undue burden on their religious beliefs. Oral arguments were heard on March 23, 2016.


Later that day during the conference, Matthew Richards, a partner at Kirton McConkie, presented "The How Of Promoting Religious Freedom Where I Live,” a nuts and bolts presentation about specific examples of how any one of us can promote religious freedom. He suggested some basic guidelines for personal involvement, including: (1) educating yourself about religious freedom issues, (2) engaging actively within your profession and community so that people will respect and value you and your opinion, (3) watching for developments within your community that may affect religious freedom, (4) when the opportunity arises, standing up for religious freedom in an individual capacity, (5) connecting with like-minded people and supporting organizations that promote religious freedom, and (6) being an example of living your faith so that others will see your good works and feel the Spirit through your acts. Richards also highlighted many real-life examples of Law Society members currently promoting religious freedom within their own communities, including: Paul Hoffman, who co-founded a non-profit organization to defend religious liberty; Gayla Sorenson, who volunteers her time and efforts to the International Center for Law & Religion Studies at BYU; John Taylor, who is handling a pro bono religious freedom case at his firm; and many others.

On Saturday, February 13, 2016, we enjoyed a plenary session panel discussion entitled, "Why Is Religious Liberty Important Anyway?" The panel included Deano C. Ware, the original attorney defending his Lutheran Church and School in the famous Supreme Court Hosanna Tabor v. EEOC case, Michael D. Frandsen, Director of the LDS Church's Public Affairs Department, and Robert E. Snyder, an attorney at The Church of Jesus Christ of Latter-day Saints. The panel was moderated by Jeffrey W. Shields,

Deano Ware and Jeff Shields
Chair of the Law Society's Religious Freedom Committee. After showing a video detailing the background of his involvement in the Hosanna-Tabor case, Ware shared his feeling that the Spirit touched him to stand up for his family's Lutheran Church and School, even though he initially knew nothing about constitutional law or the issues. Among other things, Frandsen spoke about many of the challenges to religious liberties today, including attacks on religious backed schools, threats to tax exempt status, impediments to the right to freely express religious viewpoints in the public square, and restrictions within the workplace, public schools and professional credentialing.  Snyder set forth a number of doctrinal foundations for religious freedom and its value to society, as well as reasons for us to support and promote religious freedom—both for ourselves and for everyone in society.

By Jeff Shields, Chair of the JRCLS Religious Freedom Committee, Sam Nielson, Conference Planning Committee, and Julie Smith, Media Committee

Posted: March 28, 2016