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Supreme Court Continues Trend of Siding With Religious Institutions in First Amendment Cases

Five students in a classroom are sitting with their desks pushed together. They are holding hands in a circle and have their heads bowed in prayer. There are bibles open on their desks.
By Joseph Fawbush, Esq. | Last updated on

Can religious institutions fire employees who carry out some religious instruction even if it would otherwise violate federal antidiscrimination laws? Can employers refuse to provide contraceptive coverage to employees if they have religious or moral objections? The Supreme Court answered yes to both questions in two important First Amendment cases decided on July 8.

The two cases continue a line of decisions promoting independence for religious organizations and beliefs under the First Amendment. Both were decided 7-2, with Justices Ginsberg and Sotomayor dissenting in both.

Ministerial Exemption to Antidiscrimination Laws

In a 2012 unanimous decision, the Supreme Court held that courts must stay out of “church government" including the hiring and termination of ministers. This has become known as the “ministerial exemption." Under this exemption, religious institutions are not bound by federal antidiscrimination laws such as Title VII, as doing so would conflict with the First Amendment. The Supreme Court has now elaborated and expanded on the ministerial exemption to include Catholic school teachers in Our Lady of Guadalupe School v. Morrissey-Berru. They might not be ministers, the majority reasoned, but because teachers play a key role in educating youth according to their faith's doctrine, the ministerial exemption should also apply to them.

The case arose when two fifth-grade Catholic school teachers sued for age and disability discrimination, respectively. Writing for the majority, Justice Alito noted that the Supreme Court has never set rigid rules for when the ministerial exemption applies, nor is the job title important. Instead, “[w]hat matters, at bottom, is what an employee does." And teaching children involves “responsibilities that lie at the very core of the mission of a private religious school."

Justices Thomas wrote a concurring opinion to reiterate his belief, first expressed in the 2012 decision, that courts must defer to a religious organization's good faith definition of what a “minister" is. In other words, rather than the vague and broad standard set by the majority's opinion, Justice Thomas, joined by Justice Gorsuch, would take an even more hands-off approach and allow the ministerial exemption any time a religious organization called a position ministerial.

Justice Ginsberg, joined by Justice Sotomayor, dissented to say that the majority incorrectly applied the standard for the ministerial exemption. Justice Ginsberg noted that religious organizations are still generally required to abide by laws, and previous cases have held that religious organizations must, for example, pay Social Security taxes, even when it conflicts with a sincerely held religious belief. Here, since the teachers spent most of their time teaching secular subjects, the ministerial exemption should not have applied.

An earlier decision from this term protected LGBTQ workers under Title VII. Justice Gorsuch, who wrote that decision, specifically mentioned in the Bostock decision that religious organizations could possibly be excluded from the Title VII prohibition against LGBTQ discrimination. Based on this new decision, religious organizations may feel more comfortable challenging antidiscrimination laws, including discriminating against LGBTQ workers.

Employer Opt-Out of Contraceptive Coverage

In another important case involving the separation of church and state, the Supreme Court again revisited the so-called “contraceptive mandate" included in the Affordable Care Act (ACA). The Trump Administration sought to limit a provision in the ACA that mandated employers provide contraceptive coverage for employees, unless they met a relatively narrow exception. In 2018, the Trump Administration expanded those exceptions, allowing for-profit private companies and universities to object on religious and moral grounds to contraceptive care.

In the landmark Hobby Lobby case in 2014, the Supreme Court held that closely held corporations with religious objections could avoid providing their employees with certain methods of contraception. In Little Sisters of the Poor v. Pennsylvania, the Supreme Court further limited the contraceptive care mandate, holding that “the ACA gives HRSA [Health Resources & Services Administration] broad discretion to define preventive care and screenings and to create the religious and moral exemptions." In other words, the Trump Administration, acting through the HRSA, had the legal right to create as broad of an exemption to contraceptive care as it wanted.

Justice Ginsberg again dissented, joined by Justice Sotomayor, writing that “for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree."

Justice Kagan and Breyer, meanwhile, concurred in the judgment but wrote separately to question whether the case needed to be decided on the same grounds. According to Justice Kagan, the HRSA may have the authority to decide “who needs to provide what services to women." Justice Kagan would leave that particular reading of the statute to the agency through Chevron deference. However, “[a]n agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decisionmaking." In other words, lower courts could still find that the HRSA exemptions were arbitrary and capricious and invalidate them by that means.

Separation of Church and State

The Roberts Court has generally sided with religious organizations in cases involving the separation of church and state. For example, in 2017 the court held that states must sometimes provide government aid to religious groups. And earlier this term, the court issued a 5-4 decision that prohibited Montana from excluding religious schools in grant programs.

These cases reinforce that the Roberts Court looks with a skeptical eye toward any kind of government interference in religious matters and beliefs. 

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