Religious Conservatives Notch Victories At Supreme Court On Birth Control Mandate, Bias Suits

Supreme Court Issues Orders And Releases Opinions
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July 8, 2020

Social conservatives notched a pair of victories at the Supreme Court on Wednesday, as the justices sided with parochial schools and an order of Catholic nuns seeking exemptions from job bias lawsuits and the Affordable Care Act's birth control mandate.

The first case involved a challenge to the Trump administration's expansive conscience exemptions to a rule requiring that employers provide contraceptive coverage at no cost. The second case asked whether religion teachers at parochial schools are covered by the First Amendment's "ministerial exception." The bottomline judgment in both disputes was 7-2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The Trump administration's victory in the ACA case in particular represents the fulfillment of a campaign pledge to religious conservatives. The president promised to enact an array of protections for houses of worship and faith-based employers, and the wide-ranging exemption to the contraception mandate was the watershed of those efforts. The administration's policy has been dogged by legal challenges, however.

"My hope is that now we can move on toward an American public square in which we can have moral and doctrinal debates without seeking to force people into choosing between their deepest held convictions and the callings of service to which those convictions lead," said Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

Wednesday's decisions follow a landmark victory for LGBT rights in June, which commanded votes from two Republican-appointed justices. The ruling, which has far-reaching consequences for divisive social questions, left many religious conservatives embittered and came as surveys show President Trump's support among evangelical voters dipping. Wednesday's cases seem to show the rough outlines of a would-be culture war settlement, in which the justices recognize protections for religious liberty in tandem with progressive victories in related areas like abortion or trans access to women's sports.

ACA allows broad exemptions for religious freedom under birth control mandate, Court says

The Trump administration created a comprehensive exemption from the birth control mandate in 2017, allowing employers and universities to opt out if they have religious or moral qualms. Pennsylvania and New Jersey immediately challenged the new rules in federal court, claiming states would have to cover the cost for workers who lose contraceptive coverage. A trial judge issued a nationwide injunction against Trump's policy, which the Third U.S. Circuit Court of Appeals upheld.

The administration said it crafted its rule to comply with the Religious Freedom Restoration Act, a federal law that defends against government-imposed burdens on religious practice.

Writing for the Court Thursday, Justice Clarence Thomas said the ACA gives the executive branch broad discretion to decide what kinds of preventive services, like birth control, employers must cover. If the government has a lot of latitude to set coverage requirements, it follows that it has similarly wide authority to dictate exemptions, the Court said.

"The same capacious grant of authority that empowers [the administration] to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own guidelines," Thomas wrote.

The Supreme Court has heard mandate-related cases twice before. In 2014 the justices ruled that family-owned businesses can opt out of mandatory contraceptive coverage by notifying the government of their religious objections. Alternative coverage would then be made available. Some religious entities found that process inadequate. Filing an opt-out form, they said, still made them complicit in the distribution of birth control, since coverage would be arranged through other channels. That sort of objection was before the Court in a 2016 case, but the justices punted after Antonin Scalia's death left the bench shorthanded.

The Little Sisters of the Poor, an order of Catholic nuns that operates about 30 homes in the United States for the elderly poor, has opposed the mandate in court for nearly a decade and was involved in Thursday's case. The sisters expressed relief at the successful culmination of the years-long fight.

"Our life's work and great joy is serving the elderly poor and we are so grateful that the contraceptive mandate will no longer steal our attention from our calling," said Mother Loraine Marie Maguire.

Justice Elena Kagan wrote a separate opinion joined by Justice Stephen Breyer. Kagan said she agreed the government has lots of room to craft exemptions, which was enough for the administration to prevail in Thursday’s case. But going forward, she said lower courts should consider whether the exemptions are a product of "reasoned decision-making" as required by law.

In dissent, Ginsburg accused the majority of ignoring "countervailing rights and interests in its zeal to secure religious rights to the nth degree," emphasizing that balance and compromise usually guide the Court’s approach to similar cases.

Court tosses bias lawsuit against Catholic schools, citing ministerial exemption

Wednesday's other case involved the scope of the ministerial exemption, a First Amendment rule that shields religious institutions from civil rights lawsuits in hiring and firing. The name is something of a misnomer, since the exception can cover both clerics and lay people. The rule rests on the principle that religious institutions should be free to govern themselves.

The dispute involved two Catholic school teachers from California, Agnes Morrissey-Berru and Kristen Biel, who sued their former employers after they were allegedly dismissed for discriminatory reasons. Morrissey-Berru said she was fired due to age discrimination, while Biel—who has since died—said she was removed after disclosing a breast cancer diagnosis. The schools, Our Lady of Guadalupe and St. James, say their terminations were performance-related.

The Court last dealt with the ministerial exception in a 2012 case, Hosanna-Tabor v. EEOC, which involved a Lutheran school teacher called Cheryl Perich. A unanimous Court said Perich counted as a minister and could not sue the school for employment discrimination. However, the Court offered little guidance as to who counts as a "minister" for purposes of the exception, saying it wished to avoid adopting a "rigid formula."

Justice Samuel Alito revived that theme in Thursday’s decision. While cautioning that the Court would not establish an exact test, an employee’s function—rather than title and training—should be a key guidepost. Biel and Morrissey-Berru both performed "vital religious duties," Alito wrote, like instructing students in the faith and preparing them to participate in liturgies.

"What matters, at bottom, is what an employee does," the decision reads. "And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school."

Civil rights groups were quick to denounce the ruling. Vanita Gupta of the Leadership Conference on Civil and Human Rights warned that religious freedom must not be exploited to harm workers.

"Courts must remain vigilant to ensure that employers do not abuse the ministerial exception to unfairly shield themselves from civil rights liability," Gupta said.

The cases are No. 19-431 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and No. 19-267 Our Lady of Guadalupe School v. Morrissey-Berru.

Update 4:10 p.m.: This post has been updated with further information.

Published under: Supreme Court