News and Notes: More SCOTUS Religion Cases
By George Francis Kane
This week, reports crossed my desk of milestones in two upcoming cases that may have enormous influence on the separation of church and state in America. First, the Supreme Court heard arguments in the case United States v. Skrmetti, concerning new restrictions in Tennessee on gender-affirming medical treatments for minors. A couple of days later, the Freedom from Religion Foundation announced that it had submitted an amicus brief in the appeal of a minister whose presentations to prisoners on “Christian masculinity” were canceled by the St. Cloud prison. The minister appealed to the 8th Circuit Court claiming that the prison had violated his freedoms of speech and religion under the First Amendment.
The Supreme Court argument of course received greater press coverage. The case concerns Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” At issue in the case is whether SB1 violates the Equal Protection Clause of the Fourteenth Amendment, because the law prohibiting medical procedures is based upon the sex of the patient. The Biden administration has sued Tennessee Attorney General Jonathan Skrmetti to block the bill.
The U.S. claims that the bill discriminates against transgender youth based upon their sex. Sex reassignment surgery is much more likely to be successful if it occurs before puberty. The bill would forbid administering puberty-suppressing drugs to transgender youth, while the drugs are still unrestricted for other purposes. A secondary issue is that Tennessee considers pre-pubescent patients to be too young to consent to sex reassignment, but the law would deny the right to the patient’s parents and doctors.
I hope that the eventual decision considers whether the state can justify an interest in sex assignment. Whose interest is the state trying to protect? Delaying sex reassignment until the child is old enough to give legal consent may preclude a successful outcome, harming her
for life. Rather than protecting the interests of transgender youth, the state is creating the risk of permanent harm. If Tennessee cannot prove a state interest, the law will presumably be invali- dated because of substantive due process.
A couple of days later, the Freedom from Re- ligion Foundation filed a brief in the case Schmitt v. Robertus. Self-identified minister Anthony Schmitt has been allowed for more than a decade to screen videos “based on biblical principles” to prisoners at the Minnesota Correctional Facility-St. Cloud. Schmitt’s ministry is to preach conservative Christianity, including homophobia and toxic masculinity that conflict with prison policy.
Schmitt objects that by cancelling his video presentations, the prison violated his First Amendment rights. The FFRF’s brief argues that Schmitt, as an outsider, has no rights that shield him from prison policy.
In the 1987 case Turner v. Safley, the Supreme Court ruled that prison regulations must be logically related to a legitimate penological concern. Restrictions on prisoner rights are justified if they are “reasonably related” to prison safety and security, which is the lowest level of scrutiny.
The FFRF’s brief asserts that the First Amendment religious freedom rights that are at issue in this case belong to the prisoners, not to Schmitt. Since the content of the sermons must conform to the prison’s reasonable security concerns, it is “government speech,” and is not protected by Schmitt’s freedom of speech. A prisoner, however, may raise an objection to state advocacy of religious dogma as a violation of his Establishment Clause rights.
Both of these cases raise questions about religious rights that may have wide-ranging consequences. The Tennessee legislature is trying to impose religious dogma with SB1, but that cannot be accepted as a valid state interest. SB1 will preempt parental rights and medical ethics, in whose interest? The St. Cloud prison case could create a religious privilege that would exempt outsiders from rules intended to maintain prison security.
