Over the past two weeks, Americans United has filed several amicus curiae briefs in federal court cases involving the separation of church and state. Amicus curiae means “friend of the court.” These briefs are an opportunity for individuals and groups who are not parties to a case to weigh in with insight or expertise.
Legal precedents affect everyone, not just those who are named parties in a case. So when AU files an amicus brief, we’re looking out for people who might not otherwise have a voice – religious minorities, people of color, LGBTQ+ folks, individuals with disabilities, Indigenous people. Anyone who benefits from the separation of church and state. (I happen to think we all benefit from the separation of church and state, but that’s for another blog post.)
Mid Vermont Christian School v. Bouchey: The Vermont Principals’ Association (VPA) promotes the inclusion of transgender students in interscholastic sports and prohibits discrimination and harassment based on gender identity. When Mid Vermont Christian School refused to play a girls’ basketball game against another school because the opposing team included a transgender athlete, it violated the VPA’s policies on gender identity. The school argues that its decision to forfeit was partly motivated by its religious beliefs. But this fact alone does not excuse its noncompliance with VPA policies. That’s because religion-neutral and generally applicable policies are subject to relaxed judicial scrutiny (sometimes referred to as “rational-basis review”), even if such policies incidentally burden a religious belief or practice.
This is not a case about Mid Vermont Christian School’s religious freedom – it’s a case about religious pluralism. Religious freedom does not include the right to violate a neutral, generally applicable antidiscrimination policy. Church–state separation means that the government can’t pick favorites by giving some groups a license to discriminate. Our brief, filed Oct. 22 before the 2nd U.S. Circuit Court of Appeals, focuses on why rational-basis review – and not a more exacting form of scrutiny – applies to the VPA’s policy, and explains that the policy therefore does not violate the school’s religious-freedom rights.
United States v. Idaho: AU joined a coalition of civil-rights groups by signing onto an amicus brief drafted by the National Women’s Law Center (NWLC) in this case before the 9th U.S. Circuit Court of Appeals. This case had been before the U.S. Supreme Court earlier this year (AU also signed onto an amicus brief before the Supreme Court,) but the court decided not to issue a substantive ruling on it.
The case is about the Emergency Medical Treatment and Labor Act (EMTALA), which protects access to emergency abortion care. NWLC’s brief, filed Oct. 22, urges the court to affirm EMTALA’s requirement that Medicare-funded hospitals provide necessary stabilizing treatment – including emergency abortion care – for pregnant patients. As NWLC argues, EMTALA is a crucial “life raft” in communities that have systematically been denied medical care, including Black, Indigenous, immigrant, rural and low-income communities.
St. Mary Catholic Parish in Littleton v. Roy: In this case, pending before the 10th U.S. Circuit Court of Appeals, a group of religious schools is challenging a state-funded Colorado preschool program’s prohibition against discrimination in admissions based on sexual orientation and gender identity. Like our brief in Mid Vermont Christian School, AU’s brief in this case, filed Oct. 23. refutes the schools’ argument that the antidiscrimination prohibition violates the school’s religious freedom rights.
World Vision v. McMahon: This is another case dealing with religion-neutral, generally applicable antidiscrimination laws. World Vision rescinded a job offer to Plaintiff Aubry McMahon because she was in a same-sex marriage. World Vision argues that two doctrines immunize it from liability—the “ecclesiastical-abstention doctrine” (also known as the “church-autonomy” doctrine) and the “ministerial exception.” These two doctrines limit courts’ ability to intervene in the internal affairs of religious institutions, but they do not give religious institutions free reign to ignore antidiscrimination laws.
AU’s Oct. 28 brief filed before the 9th U.S. Circuit Court of Appeals, argues that neither doctrine applies in the case because World Vision’s decision does not require the court to decide religious issues, and because the job at issue was a nonreligious one—World Vision discriminatorily refused to hire McMahon for a customer-service representative position. Thus, we argue that the court can decide this case without infringing on World Vision’s religious freedom.
Crosspoint Church v. Makin: AU signed onto an Oct. 28 amicus brief drafted by the American Civil Liberties Union in this case before the 1st U.S. Circuit Court of Appeals. This case involves yet another religious organization arguing that it need not comply with religion-neutral, generally applicable antidiscrimination laws. It’s a follow-up case to the recent Supreme Court decision in Carson v. Makin, where the court ruled that religious schools cannot be excluded from a school voucher program solely because they have a religious curriculum. We had also filed an amicus brief in that case.
Amicus briefs are just one of the many ways AU advocates for religious freedom. To learn more about our legal work, check out our case library.
Luke Anderson is Americans United’s constitutional litigation fellow
