In a pair of 7-2 decisions in what is likely to be the penultimate decision day for this extended term, the U.S. Supreme Court carved out additional ground for “religious liberty” objections to obligations imposed on organizations to advance social policies.
The more consequential decision was in Little Sisters of the Poor v. Pennsylvania, in which the Court gave the green light to a long-delayed regulatory effort by the Trump administration to exempt religious organizations and certain religious-minded private employers from the Affordable Care Act’s contraception coverage mandate. Lower courts had put the new Trump regulations on hold on a variety of mostly procedural grounds, which Justice Clarence Thomas, writing for a fractured majority of the Court, deemed invalid.
Two of the Court’s liberals, Justices Elena Kagan and Stephen Breyer, agreed that Trump’s agencies have the power to change the federal government’s interpretation of the ACA, but argued that their decisions could and should be reevaluated by lower courts to see if narrower exemptions could have satisfied the administration’s stated religious liberty concerns. Justices Samuel Alito and Neil Gorsuch would have gone in the other direction to rule out any future claim the Trump administration’s actions went too far, arguing that Trump’s positions were in fact compelled by a separate statute, the 1993 Religious Freedom Restoration Act.
Justice Ruth Bader Ginsburg (in whose dissent Justice Sonia Sotomayor joined) had by far the clearest position, holding that the ACA’s coverage mandate authorized no exemptions at all:
[T]his Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.
The decision in Little Sisters of the Poor does provide for additional proceedings in lower courts, so the baleful effects Ginsburg quantifies could yet be delayed or derailed, though it’s not very likely. The bigger threat to the Trump administration’s expansive regulatory approach to religious liberty would be a Joe Biden victory in November.
The second decision of the day, in Our Lady of Guadalupe School v. Morrissey-Berru, involves the scope of a “ministerial exception” from employment and other laws that the federal courts have long recognized as protecting the power of religious institutions to regulate their key personnel. Both the subjects in the case were teachers in Los Angeles Catholic schools who were involved in religious instruction but in more secular classes as well. Both were fired, with one alleging age discrimination and the other punitive treatment for ill health.
The majority (with the opinion written by Justice Samuel Alito) held that the functions of the two teachers involved them enough in the promulgation and practice of the Catholic faith to make the school’s handling of them subject to the “ministerial exception.” In a concurring opinion, Justices Thomas and Gorsuch argued that courts should simply accept without scrutiny religious organizations’s determination of who is and isn’t a “minister.” And in a dissent, Sotomayor (joined by Ginsburg) suggested that by giving so much deference to the school’s own interpretation of the roles of the two teachers in question the Court had essentially adopted the standard urged by Thomas and Gorsuch, having “traded legal analysis for a rubber stamp.”
The Court has indicated it will release what are likely to be the final decisions of the term on July 9. Three cases remain: one involving the extent of native tribal sovereignty in Oklahoma, and two concerning congressional and state court access to the president’s financial, bank, and tax records.