PROVO — Experts on the final day of a BYU conference Friday strongly urged people of faith to get involved in religious freedom issues before they reach the courts.
The U.S. Supreme Court has a pretty good scorecard when it comes to protecting religious liberty, two seasoned attorneys said. The court is less protective, however, when issues revolving around "sexual revolution issues" are part of a case.
Since 2006, religious liberty proponents have won 12 of 15 cases before the Supreme Court, said Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, which has won four of those cases.
"We have been largely successful in protecting religious liberty, not only for individuals but for religious organizations," Smith said at the third BYU Religious Freedom Annual Review at the BYU Conference Center. "I just want to hold out hope for all of you who have heard gloom and doom. There is a lot of reason to be optimistic. I think we are going to continue to see opportunities for us to win in the courts of law and at the Supreme Court in the future."
BYU law professor Gene Schaerr provided scorecards for the courts under the past two chief justices. He said the Rehnquist Court voted to protect "private religiously motivated conduct" in eight of 11 cases from 1987-2005. Since then, the Roberts Court, he said, has protected private religiously motivated conduct in six of seven cases.
"The Supreme Court usually votes to protect religiously motivated conduct, and usually by a wide margin," Schaerr said. "Unfortunately, there's a big caveat to that conclusion. When it comes to issues arising out of the sexual revolution that began in the 1960s, the court is much less reliable in protecting religious freedom."
Chief Justice John Roberts and Justice Samuel Alito each have voted to protect religious liberty in 100 percent of cases, Schaerr said.
In cases about religiously motivated conduct, the others have scored better than 50 percent (Clarence Thomas 87 percent, Anthony Kennedy 76, Sonia Sotomayor 67, Elena Kagan 67, Stephen Breyer 62) except for Justice Ruth Bader Ginsburg, who scored 46 percent.
In cases involving the sexual revolution — LGBT issues or contraception, for example — the voting changes. Thomas joined Roberts and Alito voting for religious freedom in 100 percent of those cases, and Kennedy 75 percent. Sotomayor and Kagan did so in 33 percent of the cases and Ginsburg and Breyer in 25 percent.
Schaerr said he believes that the men and women presumptive Republican nominee Donald Trump has said he would choose from to nominate to the court would protect religious liberty with vigor. He has read all of the cases concerning religious freedom involving President Obama's current nominee, Judge Merrick Garland, and said he learned little about how Garland might vote.
"He'd probably give more weight to claims of sexual freedom than to claims of religious freedom," Schaerr said.
He predicted that whoever replaces Justice Antonin Scalia, who died in February, on the court generally will favor religious liberty in the near future.
"In the short run, it will probably do more of the same regardless of who is appointed to replace Justice Scalia, except in cases involving the sexual revolution. The Supreme Court will generally be more favorable to religious freedom claims, but in cases that do involve the sexual revolution, it's clear that we cannot rely on the Supreme Court to save our bacon if we're concerned about religious freedom."
The positive notes were welcome at a conference full of concerns about lower court rulings and religious liberty clashes with school boards, zoning commissions and homeowner associations, not to mention issues faced by religions internationally.
"Religious freedom is losing esteem in a broader social context," said Steven Collis, a Denver attorney who is chairman of the Religious Institutions and First Amendment Practice Group. "Legally in the United States, we're pretty well off in religious liberty, especially compared to other countries. But in a social context, religious liberty is losing steam. It doesn't take long for that loss of esteem in society to translate over to a loss of rights in courts."
Collis conducted a workshop on how people of faith can get involved and make a difference. He began with a quote from the keynote speech delivered Thursday by Elder Lance B. Wickman, general counsel for The Church of Jesus Christ of Latter-day Saints and an emeritus general authority Seventy.
"I sometimes fear that we have relied too much on the Constitution instead of doing the hard work of being a citizen," Elder Wickman said.
"Open your mind," Collis said, "to what you can do in your local communities to get involved when issues arise."
Foremost, he said, believers should share the good that is coming from their faith, sharing positive stories on social media with news organizations and in op-ed pieces.
He encouraged the defenders of religious liberty to seek first to understand the reason why a law or policy is proposed that would infringe on religious freedom.
He said believers should be civil in describing why a law or policy violates religious liberty protections, and then be practical and compromise.
Collis and others suggested mobilizing others and sharing information about what is happening. The most effective method, many in the audience said, was speaking privately, one-on-one with key members of a legislature, board or commission. Working in interfaith groups to find common ground is also powerful.