Strong words, but the chief justice’s opinion contained an unusual footnote: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Say what? While five other justices signed the chief justice’s opinion, two of those, Clarence Thomas and Neil Gorsuch, dissented from the footnote, thus depriving it of majority status. When the Supreme Court rules, Justice Gorsuch wrote, it does so on the basis of “general principles.” He added: “General principles here do not permit discrimination against religious exercise — whether on the playground or not.”

Chief Justice Roberts knows that as well as Justice Gorsuch. His footnote has all the earmarks of having been designed to secure the agreement of Justice Kennedy, whose position at the ideological center of the court over many years exacted a high degree of deference from colleagues seeking to get or hold his vote. The frequent result was that his colleagues signed on to opinions more narrow than they would have preferred. f In granting review of this unlikely case, the court’s new majority hopes to move the ball forward.

Among the other new cases now vying for the court’s attention is one that seeks to push the boundaries of another opinion by Chief Justice Roberts. In 2012, the court for the first time recognized a “ministerial exception” to laws that prohibit various kinds of discrimination in employment. This allows religious institutions to choose or dismiss their ministers, even if federal laws are violated. The question the court addressed in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission is more difficult than it might appear. Clearly, no court would recognize a Catholic nun’s claim to sex discrimination for the church’s refusal to ordain her as a priest. But what about a parochial school teacher? The court upheld a Lutheran church’s right to fire a teacher who threatened to sue the church for violating the Americans With Disabilities Act. The teacher, Cheryl Perich, was not ordained. But in Lutheran practice, she was “called” and deemed qualified to lead religious services and perform other religious functions in the church school.

The chief justice’s unanimous opinion was a cautious one, with a lengthy discussion of the teacher’s training and duties. The question quickly arose: What about other teachers, ordinary teachers whom no one would regard as quasi-ministers? Did the ministerial exception also shield their church-connected employers from claims of discrimination? An appeal filed two weeks ago by a Catholic school in Los Angeles offers the court a chance to answer that question. The United States Court of Appeals for the Ninth Circuit, observing that a teacher, Agnes Morrissey-Berru, did not have any particular religious credentials, training or title, ruled that she had a right to pursue her lawsuit against Our Lady of Guadalupe School under the federal Age Discrimination in Employment Act. The school’s petition, noting that “this court left many of the exact contours of the ministerial exception for a later day,” is arguing that the Ninth Circuit’s insistence on credentials and title is unduly rigid and would deprive religious groups of discretion to define the roles of their employees.

The school is represented by the Becket Fund for Religious Liberty, a highly effective religious-rights law firm that commands a great deal of respect at the Supreme Court. Becket entered the case after the Ninth Circuit’s ruling to handle the school’s Supreme Court appeal. It also plans to file a Supreme Court appeal of another recent Ninth Circuit ruling that refused to grant a ministerial exception to a Catholic school that fired a fifth-grade teacher after she developed breast cancer and requested time off for treatment. She sued under the Americans With Disabilities Act.

The most intriguing new appeal waiting for the justices’ review is another Becket Fund case, filed in July. The case, Ricks v. State of Idaho Contractors Board, presents a single straightforward question: whether the Supreme Court should overturn a 29-year-old decision, Employment Division v. Smith. That was the case in which the court refused to grant a religious exemption to two members of the Native American Church who had been denied unemployment benefits after being fired as counselors for a private drug rehabilitation group for their ritual use of peyote, an illegal hallucinogen. The First Amendment’s Free Exercise Clause does not provide religious exemptions from neutral laws of general applicability, the court ruled. The decision set off a bipartisan, multireligious uproar that led to the swift enactment of the Religious Freedom Restoration Act, requiring a “compelling justification” to “substantially burden religious exercise,” and designed, as the law’s title suggests, to overturn the court’s decision. The court subsequently ruled that Congress lacked authority to apply this law to the states, where Employment Division v. Smith remains the law unless a state has enacted its own Religious Freedom Restoration Act.