In Merrick Garland’s 19 years on the U.S. Court of Appeals for the D.C. Circuit, cases related to religious freedom have come across his docket several times.
Garland’s rulings do not reveal a pattern that would indicate what guiding principle he might bring to the Supreme Court, if he manages to make it through the Senate. But they do invite curiosity.
In four cases that The Post identified Wednesday, Garland sided twice against people who said they were victims of religious discrimination, and twice in favor.
Case 1: Are prisoners entitled to Communion wine?
In the earliest case, in 2002, Garland sided with two federal prisoners who claimed their First Amendment right to freely exercise their religion was being violated in prison. Prison rules forbade the men from consuming wine, though their supervising chaplain could have wine during Communion. The prisoners said they had a right to consume the wine for religious purposes.
The lower court had turned down the prisoners’ complaint, saying consuming the Communion wine is not an essential aspect of Catholic religious practice.
But the three-judge panel that heard the case on appeal, including Garland, said a religious practice does not need to be mandated by the religion to qualify for First Amendment protection. It said the lower court was wrong and sent the case back to that court to hear it again.
The Post asked Jay Wexler, an expert on church-state law at Boston University, to review the four rulings. Wexler called the Communion case the most interesting of Garland’s judgments on the topic of religious freedom. But he also said it should have been an easy call.
“That case is mildly pro-religious freedom, although the lower court was so clearly wrong that I don’t know if much can be made out of the D.C. Circuit’s reversal,” he wrote in an email.
Case 2: Does an employer have to let a worker avoid shifts on Sunday?
Garland wrote the court’s opinion in 2010 siding with another person who claimed she was a victim of religious discrimination.
He ruled in favor of Cassandra Payne, an Interior Department employee who drove a tractor at Rock Creek Park from 1984 to 2000, until she suffered a nearly fatal allergic reaction to a bee sting. Her supervisors reassigned her to a different job so that she could work indoors — but they changed her old Monday-to-Friday schedule to Wednesday to Sunday.
For four years, Payne asked to work weekdays so that she could attend church and Bible study, Garland wrote. Then she filed a complaint alleging religious discrimination. An administrative judge found that the Interior Department had indeed discriminated against Payne based on her faith.
But the fight continued, all the way up to Garland’s court, where he interpreted the law in Payne’s favor.
Case 3: Did the Navy discriminate against chaplains from some Christian denominations?
Garland came down on the opposite side in 2004, voting against Navy chaplains who felt that they were being discriminated against on the basis of their denominations.
The Chaplaincy of Full Gospel Churches, an organization that endorses Christian chaplains, said its chaplains were being passed over for promotions. It sued the Navy, asking for the release of confidential information about the selection process.
Garland voted not to compel the Navy selection board members to talk about the process.
Wexler said Garland’s differing choices on the Interior Department worker and the Navy chaplains weren’t inconsistent and didn’t say much about how Garland feels about religious freedom. “They involve claims of religious discrimination, but they are really about procedural issues,” Wexler wrote.
Case 4: Is the Affordable Care Act’s contraception mandate unfair to religious nonprofits?
By far the most closely watched of these cases, Priests for Life v. United States Department of Health and Human Services, is now set for a Supreme Court argument next week. Bundled with six other cases that all address the question of contraception coverage, it is one of the most highly anticipated Supreme Court cases of the term. And on its way to the high court, it passed through Garland’s courtroom.
The case focuses on the mandate under the Affordable Care Act that employers provide contraception to employees. Religious employers can opt out of providing contraception directly, but Priests for Life argued that even opting out is too burdensome, because the government ensures that the employees still have access to contraceptives.
That mandate, Priests for Life argued, violates the 1993 Religious Freedom Restoration Act — the same law often discussed nationwide when wedding photographers or cake bakers say it would violate their religion to cater to a gay wedding.
In May, Garland voted in the majority in the 6-to-3 Court of Appeals decision to deny an en banc hearing, which would have been heard by the whole court. That denial meant that the earlier decision, against Priests for Life, stood — for now. The Supreme Court will have its say soon.
“Priests for Life [is] of course an incredibly important case,” Wexler emailed, “but Garland didn’t write anything separately on it. He simply voted to deny rehearing en banc, which doesn’t say much of anything about his views on the case, other than that he didn’t think the panel opinion denying the Priests’ religious freedom claim was clearly wrong.”