This article is the first entry in a SCOTUSblog symposium on the Roberts court and the religion clauses.
Leslie C. Griffin is the William S. Boyd professor of law at the University of Nevada, Las Vegas. She is the author of Law and Religion: Cases and Materials. She wrote amicus briefs in support of the respondents in Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru, and she is writing an amicus brief in support of the respondent in Fulton v. City of Philadelphia.
The First Amendment has two religion clauses: establishment and free exercise. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religion won several cases during the Supreme Court’s 2019-20 term, and it could win more in the upcoming term.
That sounds like a great idea. But it is not.
Religion’s victories are bad for civil rights, especially for rights of women, LGBTQ individuals and people of color. As religion’s influence increases at the court, victories for civil rights decrease. The court’s recent cases confirm that some religious exemptions are incompatible with civil rights. Things could get even worse this coming term for civil rights, as religions appear to repeatedly trump civil rights — even those of religious people.
Public funding
In Espinoza v. Montana Department of Revenue, Chief Justice John Roberts changed the traditional establishment clause rule that government should not fund religion. He wrote that, once a state decides to subsidize private education, “it cannot disqualify some private schools solely because they are religious.” Espinoza was a 5-4 decision, with Roberts joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Although Roberts did some damage to past establishment clause interpretations, Thomas and Gorsuch would end them completely, saying in a concurrence that the clause does not block the states’ choices about religion at all. With three more votes, your state could choose whatever religion it wants.
Why would anyone object to this? Because the majority lost the traditional ideal, defended by the dissenters and James Madison, that people should not be required to pay taxes to support other religions. In Espinoza, an amicus brief by rabbis supported Montana, explaining that “[a]ll religious schools in Montana are affiliated with Christian denominations,” and that invalidating Montana’s no-aid rule would fund schools that “incorporate in their teaching materials that are antithetical to Jewish beliefs and values.” Other Christians also briefed in favor of Montana. Nonetheless, Jews, other Christians and minority religions are now expected to pay for programs that teach religious ideals with which they disagree. They are especially worried that their tax dollars will now pay for schools that do not protect LGBTQ rights.
LGBTQ rights
LGBTQ rights will be before the court this coming term, in Fulton v. City of Philadelphia. Philadelphia runs an adoption program, and it noticed that some of its religious participants would not allow same-sex couples to adopt children. This violated Philadelphia’s nondiscrimination rules, and the city therefore ended its contract with the offending agencies. One of the agencies, Catholic Social Services, sued, arguing that it has a free exercise right to do business with the city while continuing to discriminate against same-sex couples, whose marriage rights are protected by the Constitution of the United States. The U.S. Court of Appeals for the 3rd Circuit sided with Philadelphia, and the Supreme Court granted cert.
A win for the Catholic agency would be a terrible statement that the free exercise clause promotes the avoidance of the civil rights of LGBTQ Americans. Two of the court’s cases this past term demonstrated that the court also values religion over women’s rights.
Reproductive rights
In 2014, in Burwell v. Hobby Lobby Stores, another 5-4 decision, the court ruled that the Religious Freedom Restoration Act entitled closely held corporations to be exempt from a federal regulation requiring employers to cover certain contraceptives for their female employees. Justice Ruth Bader Ginsburg’s dissent argued — correctly — that under the free exercise clause, everyone is supposed to obey the law, and that RFRA’s protection for religious freedom is not supposed to harm third parties, as it did in this case by limiting thousands of women’s contraceptive insurance.
The Trump administration expanded the exemption to include more religious and moral objections to contraception, and it also eliminated employers’ obligation to inform anyone of their decision to opt out of the mandate. This summer, the court, by a 7-2 vote in Little Sisters of the Poor v. Pennsylvania, upheld the new rules, which gave bigger exemptions to more employers and much less coverage to women. Ginsburg wrote another dissent, explaining that “[t]oday, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Ginsburg has always promoted women’s rights. She and Justice Sonia Sotomayor alone understood how the expansion of religious rights hurts women by restricting their reproductive freedom. As legal scholar Maya Manian wrote last month, “Regulations restricting access to contraception and abortion disproportionately harm poor people and people of color.” Religious freedom often hurts civil rights.
Expansion of RFRA
Notice that Burwell and Little Sisters were decided under a statute, RFRA, that gives religious plaintiffs the right to sue the government for substantially burdening their religion — not under the free exercise clause, which requires everyone to obey the law. This fall, the court will hear another RFRA case, Tanzin v. Tanvir. Muhammad Tanvir, the plaintiff, was approached by FBI agents who asked him whether he could tell them anything about the Muslim community. When he said no, they put him on the national “No Fly List” and threatened deportation. Unable to keep his job as a trucker or to fly back to Pakistan to see his mother, Tanvir sued the FBI for monetary damages under RFRA. The court will decide if such damages are available.
What will happen if the court expands RFRA in this case? Civil rights would suffer more, enhancing people’s ability to say that requiring them to obey the antidiscrimination laws would violate their religious liberty. A smart amicus brief for neither side in the case makes the essential point that RFRA is unconstitutional. “RFRA’s invalidation of constitutional laws to the benefit solely of religious actors is a patent preference for believers, which violates long-settled and critically important principles under the First Amendment’s Establishment Clause,” the brief says. The worry is that the Supreme Court no longer recognizes the establishment clause and will give RFRA the victory instead of the establishment clause and civil rights.
Women lose to religion again
Another area of religious rights that the Supreme Court is expanding is the so-called “ministerial exception” doctrine, which itself is a court-made rule. In 1972, Billie McClure, a female ordained minister in the Salvation Army, sued her employer, arguing that she had received less pay and benefits than the male ministers. Even though Title VII of the Civil Rights Act does not contain a religious exemption for gender discrimination, the U.S. Court of Appeals for the 5th Circuit dismissed the case, saying courts cannot interfere with employment decisions involving employees who qualify as “ministers.” Courts around the country have recognized this “ministerial exception,” which is an affirmative defense to any discrimination case, including race, national origin, gender, sexual orientation, age, disability and so forth. I think those cases could be decided on the facts, in the courts, with juries and judges deciding. Sometimes the plaintiffs would win, and sometimes they would lose. Instead, in the courts’ thinking, if your employer can label you a minister, you automatically lose.
The Supreme Court in 2012 unanimously approved the ministerial exception, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, saying it did not even matter if the employer had promised to obey the antidiscrimination laws yet disobeyed them. This past term, in Our Lady of Guadalupe School v. Morrissey-Berru, the court extended the exception to apply to one Catholic teacher and one maybe-Catholic-but-probably-not teacher at Catholic elementary schools. The U.S. Court of Appeals for the 9th Circuit had correctly recognized these women as teachers, not ministers. As teachers, their lawsuits for disability-based discrimination and age discrimination could proceed. The Supreme Court reversed and decided they were ministers, even though neither had been ordained and neither had ever had any indication or personal belief she was a minister. Only Sotomayor, joined by Ginsburg, recognized that the court had just robbed “hundreds of thousands of employees” of any right to sue their employers for any violation of the antidiscrimination laws.
Religious schools are not subject to the antidiscrimination laws as long as they can call an employee a minister. Alito’s opinion for the court made it even easier for employers to win. Even women who cannot be ordained priests and were never called ministers become ministers the minute they get into court. As Sotomayor’s dissent pointed out, the ministerial exception now seems to apply to many more people than thousands of schoolteachers, including “countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions.”
Where we stand today
In one term, the court limited contraceptives access, expanded the number of school employees who could be called ministers and said those schools were entitled to government funding. Religious organizations now have broad exemptions from the country’s antidiscrimination laws, can refuse contraceptive insurance coverage as they choose and are entitled to government funding while they disobey the laws.
Those cases are victories for some religions. But they are losses for everyone else, including many of the members of those religious institutions.
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