When in July the Supreme Court sided with the Little Sisters of the Poor against an Obama-era contraception mandate, the Trump administration claimed it as another win for its religious liberty agenda.
“Behind every court victory and every successful administrative reform are dedicated people working to protect our lives and freedoms as promised by the Constitution and protected by our laws,” Health and Human Services Secretary Alex Azar wrote in the Washington Examiner. “That dedicated work is why we can say Trump is the most pro-life, pro-religious liberty president in American history.”
Trump supporters heaped similar praise on the administration throughout the president’s term — and not without good reason. Trump and his aides often cited religious liberty as one of their top priorities, and the executive branch frequently released guidance and executive orders protecting the freedom of conscience for religious people and created several departments dedicated specifically to religious freedom regulation. The most public displays were fights such as the Little Sisters case and the Justice Department’s interventions into church-related coronavirus litigation, but the administration pursued many smaller skirmishes too.
The Biden administration on religious liberty is expected to produce opposite results. Biden, although personally religious, throughout his campaign made statements calling out the Trump administration for the ways in which it supported religious liberty. In the most dramatic example, Biden vowed after the Supreme Court’s decision to remove the exemptions to the contraception mandate that Trump had put in place for groups such as the Little Sisters.
Once it became apparent that Biden would take office in November, the president-elect indicated that within his first few days in office, he would reverse many of the Trump administration’s orders on healthcare, resurrecting many Obama-era fights on exemptions for religious groups. Biden has also promised to introduce guidance ramping up protections for sexual and gender identity.
“All of those things conflict with religious groups,” said Kelly Shackelford, the president of First Liberty Institute. “It’s going to create massive amounts of litigation, where we’re going to have to come in and protect religious groups or religious individuals or religious conscience.”
Shackelford, who has worked in religious freedom litigation for several decades, said that the difference for religious organizations in treatment between Trump and Biden will be particularly steep. Increasing polarity regarding the competing interests of gay and transgender protections and religious freedom has been tugging at the Left and the Right since the Supreme Court legalized gay marriage in the 2015 Obergefell v. Hodges decision, and in a Biden administration, the fights are only expected to multiply.
At the heart of the debates is a disagreement over whether the term “sex” is defined by biology or gender identity. The Trump administration maintained the former position and, through the HHS and the Solicitor General’s office, sided with religious groups disputing Obama or state-level mandates pushing in the other direction. Biden, on the other hand, has promised within his first 100 days to enforce the framework of the Equality Act, proposed legislation that understands sex as a gender construct, across all federal agencies. And if Democrats win Congress through the Georgia runoff elections, he promises to sign its legislative version into law.
The issue briefly dominated the Supreme Court this summer in the case Bostock v. Clayton County. There, in a majority opinion by Justice Neil Gorsuch, the court decided that companies cannot discriminate against gay or transgender people in hiring practices. Gorsuch noted, however, that the case did involve religious disputes — and he expected such cases to arise in the coming terms.
His prediction proved correct in November when the court heard Fulton v. City of Philadelphia, which pits a Catholic foster care provider against a city rule requiring it to place children with gay or transgender parents. Looking at the case, Justice Brett Kavanaugh commented that it spoke more broadly to an issue that the court must face as disputes between religious people and gender identity champions remain unresolved.
“It seems like we should be looking, where possible, for win-win answers,” he said. “And it seems like neither side is going to win entirely, given the First Amendment on the one hand and given Obergefell on the other.”
Because of this, many religious liberty advocates regard the Supreme Court as a likely safeguard against overreach toward people of faith. Even before the Senate confirmed Justice Amy Coney Barrett, the court was expected to side more often with faith groups.
“Religious liberty has not been a nail-biter, 5-4 issue at the court in recent years,” said Mark Rienzi, the president of the Becket Fund for Religious Liberty. “It has been one that has been able to command supermajorities most of the time, and I would expect that to continue no matter who’s on the court.”
Still, with a Biden administration expected to reopen many of the old fights that placed groups such as the Little Sisters in nearly a decade of legal battles, religious groups could face a long few years before seeing the issues play out in court.
“If you’re a little religious group, that’s not exactly encouraging to you,” Shackelford said.
