‘Disturbing’ trend in lower courts circumvents Supreme Court religious freedom protections: lawyer

September 25, 2024

A lawyer for a religious freedom legal organization is warning of a “disturbing trend” of lower courts seeking to circumvent U.S. Supreme Court precedent protecting the right to free exercise of religion.

The Christian Post reports that Eric Rassbach of the Beckett Fund for Religious Liberty says the trend may have implications for religious charities as well as parental and conscience rights.

Rassbach says that, over the past 10 years,  the Supreme Court has “issued decisions that have made it harder for defendant governments to evade liability under the Free Exercise Clause.” Now, he warns that lower courts, “have compensated by putting pressure on other parts of the Free Exercise Clause test to continue ruling against religious plaintiffs.”

Rassbach gave two specific examples where lower courts, “evaded the main Free Exercise balancing test by claiming that the religious plaintiffs have not experienced any burden at all on their religious exercise.”

In the case of Apache Stronghold, the Ninth Circuit said that the sale of a federally owned plot of land considered sacred by Native Americans was no burden at all on the Apaches’ religious exercise.

In another case, the Fourth Circuit said that Muslim, Jewish and Christian parents in Maryland had no burden on their religious exercise when Montgomery County public schools ended a procedure allowing parents to opt their children out of sexually-themed readings and discussions.

Rassbach said, “in both cases, the lower courts proved deaf to the concerns of religious minorities, telling them that the obvious burdens they were experiencing were simply not cognizable in law.”

The Christian Post reports that Rassbach has specified four cases that his organization is trying to get before the Supreme Court next year.

Photo: top, Credit: Chip Somodevilla/Getty Images