There’s an old adage that bad facts make bad law, and in this case, given political exigencies, there was little to no chance that the Court would have found that the cross must be removed from public property. While we had previously anticipated that denying the case based on standing would have been the “easy answer,” the Court issued a ruling today that addressed the cross on the merits. Now our attention turns to whether there is collateral damage to the substance of the Establishment Clause.
The Freedom from Religion Foundation has decided not to ask the U.S. Supreme Court to review the 7th Circuit decision in Gaylor v. Mnuchin (7th Cir., March 15, 2019) upholding a clergy-specific tax-free housing allowance provision in the IRS code. The secular organization has consistently argued that Internal Revenue Code Sec. 107(2) violates the Establishment Clause.
The Free Exercise Clause that guarantees religious freedom is much weaker than most people realize. While freedom of speech, freedom of the press, freedom of assembly, and even the establishment clause are subject to highest “strict scrutiny” levels of protection, the free exercise of religion receives the lowest level of protection – the “rational basis test.”
The Supreme Court appears reluctant to squarely address the balance between the free exercise of religion and anti-discrimination statutes, or to discuss a claim for hybrid-rights combining “rational basis” free exercise rights with “strict scrutiny” free speech rights.
The Supreme Court issued a ruling on June 3, 2019, in a case (Fort Bend County v. Davis) involving whether a court may hear a discrimination case where the plaintiff fails to raise all charges in an initial EEOC complaint. The Court found that the Title VII’s rules are procedural, not jurisdictional, and as such procedural defenses need to be raised early in a case.