WASHINGTON—In a pair of 7-2 rulings related to religious liberty issues, the U.S. Supreme Court on July 8 broadened the scope of employers’ right to make employment and benefits decisions based on moral and religious grounds.
One decision clarified the expansiveness of the ministerial exception from federal employment discrimination laws. The other affirmed non-church-related nonprofits with moral and religious objections can limit access to birth control coverage mandated by the Affordable Care Act.
‘What matters … is what an employee does’
Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel consolidated two similar cases regarding elementary school teachers at Catholic schools.
The 9th Circuit Court had ruled the teachers in the two cases could move forward with their claims of age discrimination and disability discrimination. The circuit court asserted the ministerial exception—which exempts religious institutions from anti-discrimination laws when it comes to hiring ministers—did not apply because the teachers did not carry the job title “minister” and lacked extensive formal religious training or ministerial credentials.
The Supreme Court, on the other hand, insisted the employees’ discrimination claims could not be adjudicated without entangling courts in questions of religious identity.
“What matters, at bottom, is what an employee does,” stated Supreme Court Justice Samuel Alito, writing for the court’s majority.
Alito pointed to the teachers’ role in fulfilling the stated religious mission of their schools, asserting 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.”
Right to ‘exercise autonomy over hiring decisions’
John Litzler, a Texas Baptist attorney who works exclusively with churches and Christian organizations, applauded the ruling.
“The court has again affirmed the right of churches and religious organizations to exercise autonomy over hiring decisions regarding those who perform religious duties for their organization,” Litzler said.
Sign up for our weekly email newsletter.
However, he offered a practical word of caution to religious organizations.
“Often churches and other religious groups describe themselves as ‘equal opportunity employers’ because they know for-profit corporations use this language or because an employment law attorney helped the church draft its policies and job descriptions. In practice, however, many churches are not equal opportunity employers as described by federal law, because they discriminate when hiring based on religion and sometimes based on other protected characteristics like sex,” Litzler said.
“It can create confusion for potential employees, and courts, when a church claims to be equal opportunity but also relies on the First Amendment exemption from employment discrimination laws.”
The Supreme Court’s decision “demonstrates that the ministerial exception is more far-reaching than many employees assume,” said Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty.
“The decision protects religious communities in shaping and conveying matters of faith in their schools, which is the primary purpose of their existence,” Hollman said. “As a matter of fairness, it should also lead religious employers to clarify expectations with employees, not only about religious job duties, but about the limits of employment law protections.”
‘The court wants to have it both ways’
BJC Executive Director Amanda Tyler pointed out the Our Lady of Guadalupe School decision contrasts with the Supreme Court’s recent 5-4 ruling in Espinoza v. Montana Department of Revenue. In that decision, the court ruled a state program that allows public funds to go toward private education cannot exclude religious schools.
“The problem is, when it comes to religious schools, the court wants to have it both ways: religious schools are just like all other private schools when it comes to funding (Espinoza) but not when it comes to employment (Our Lady of Guadalupe Schools),” Tyler wrote in a Twitter thread.
Rachel Laser, president and chief executive officer of Americans United for Separation of Church and State, also noted the incongruity of the court’s rulings in the Espinoza and the Our Lady of Guadalupe Schools cases.
However, Laser went on to criticize the expanded understanding of the ministerial exception, asserting the court was redefining religious freedom by “twisting what it meant to be a shield that protects us into a sword to harm others.” The ministerial exception “should not be exploited to justify discrimination against math, gym and computer teachers, who clearly aren’t ministers,” she said.
Long legal battle for Little Sisters
The Supreme Court’s other July 8 decision settled a seven-year legal battle involving the Little Sisters of the Poor, a Catholic order of nuns that sought an exemption from the contraceptive mandate in the Affordable Care Act.
The 2011 rule provided an exemption for churches and their auxiliaries that objected to the requirement that employers provide workers with coverage for contraceptives, but the exemption did not extend to other nonprofit organizations.
Interim regulations issued in 2017 and final rules issued in 2018 protected employers with religious objections to the mandate, but when several states issued a challenge, the 3rd Court of Appeals ruled against the Little Sisters.
In its decision on Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Supreme Court ruled the 3rd Court ruling was “erroneous.”
Writing for the court’s majority, Justice Clarence Thomas cited the Religious Freedom Restoration Act of 1993, which requires the government to have a compelling interest and use the least burdensome means before restricting religious free exercise.
A ‘win’ or not?
The BJC had argued the exemptions to the mandate approved during the Obama administration satisfied the RFRA requirements, offering a “win-win” that responded to religious objections without depriving employees of health care benefits.
“The Trump administration turned that potential win-win into a system that gives total deference to religious objectors,” Tyler tweeted. “The exemption is incredibly broad and can be claimed for any religious or moral reason. … Commitment to religious exemptions could evaporate if we see lopsided exemptions like these. RFRA is a balancing test, not an automatic win for all religious objectors.”
Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, took a different position, saying, “A victory for the Little Sisters of the Poor is a win for all Americans.”
“One need not agree with the Sisters on their theological or moral beliefs to recognize that a free country should allow them to serve without state harassment,” Moore continued. “This is especially true since it was demonstrated, again and again, that the government’s policy of contraceptive availability, could be achieved by other means.
“This Supreme Court decision upholds one of the most important principles of the American experiment in liberty: that the state does not own the consciences of human beings. After years and years in court on this case, I am grateful to see, at long last, a just resolution.
“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.”
In contrast, Laser of Americans United asserted the court “put its stamp of approval on the Trump administration’s exploitation of religious freedom at the expense of birth control coverage for workers, students and their families.”
“Our government should be protecting the health of America’s workers and students, not putting them at risk and calling it religious freedom,” Laser said.
Texas attorney Litzler noted the 7-2 court decisions regarding both the ministerial exception and the contraceptive mandate exemption—with only Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissenting in both cases—demonstrates a clear consensus on the Supreme Court.
“When it comes to religious liberty, the court is not evenly divided down partisan lines. Religious liberty is a bipartisan issue,” Litzler said.