By James F. Sweeney
The October 2019 term of the Supreme Court of the United States produced an unprecedented number of potentially landmark religious-liberty decisions that were necessitated by the rapid rise of rigid secularism as a major force in American culture and politics.
Less than two generations ago, the accommodation of religious belief and practice was simply a given in law and politics. But times have changed. Because religious belief and practice have been marginalized culturally and politically, the state’s willingness to accommodate the faith community has all but disappeared. The Supreme Court heard an unusually large number of religious freedom cases during the term just ended, all but one of which have serious implications regarding the future ability to exercise those rights.
A majority of the justices signaled a cautious willingness — at least for the moment — to continue to protect the First Amendment religious-liberty rights of religious believers from increasingly aggressive infringement, by government agencies and private organizations advancing a secularist political and legal agenda. While the majority’s apparent affirmation of the continuing vitality of religious freedom rights is a welcome outcome, religious believers should remain deeply concerned that these decisions were required at all to safeguard rights that have been fundamental to American liberty for two centuries. Moreover, the relatively thin margin supporting religious-liberty rights also remains a serious, ongoing concern.
Two of the Court’s most controversial decisions this term — Bostock v. Clayton County and Our Lady of Guadalupe School v. Morrissey-Berru — are particularly significant from a religious freedom standpoint. These cases collectively raise more questions than they answer. In Bostock, Justice Neil Gorsuch, writing for a 6-3 majority of the Court, concluded that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 also applies to discrimination on the basis of homosexuality and transgender status.
Previously, “sex discrimination” under Title VII had always been understood to mean biological sex, not sexual orientation or gender identity. Indeed, in their strongly worded dissenting opinions, Justices Clarence Thomas, Samuel Alito, and Brett Kavanagh criticized the majority for legislatively revising the law, as opposed to interpreting it as it was written and enacted by Congress.
Bostock caused considerable concern among religious organizations, particularly educators, who feared that teachers and staff at religious schools openly living in a manner inconsistent with religious teachings and beliefs were now subject to the protections of Title VII. This was a deeply problematic development for religious institutions that adhere to traditional Christian and biblical principles regarding sexual morality.
But just three weeks after handing down Bostock, the Court reaffirmed in Guadalupe that the First Amendment-based “ministerial exception” bars most employment-related lawsuits against religious organizations by employees whose positions involve some form of religious ministry. Alito, writing for a 7-2 majority of the Court, concluded that the First Amendment prohibited employment discrimination claims brought by two elementary school teachers against the parochial schools that employed them. The Court concluded that both teachers were “ministers,” exempt from federal employment discrimination claims, because training young people to live their faith is the core mission of a religious school. Such being the case, the First Amendment protected the schools’ decision to terminate each of the involved teachers.
Was Guadalupe intended to protect religious schools and churches from discrimination lawsuits based upon Bostock? Are these two clearly significant decisions intended to be companion cases? We do not know. What goes on in the justice’s private conference room is perhaps the best kept secret in the federal government. But, reading the cases together does seem to suggest that Guadalupe could well be the shield given by the Court to religious organizations to protect their right to live out their religious beliefs in the wake of Bostock. The next few years will give us the answer to these very important questions.
In another set of seemingly-related decisions announced at the end of the term, the Court appears to have cleared the way for religious schools and organizations to participate in government programs and receive public benefits on an even footing with public schools and secular organizations.
In Trinity Lutheran Church v. Comer, the Court struck a potentially fatal blow to what are known as Blaine Amendments, which prohibit state governments from allocating any public funds to religious organizations. Chief Justice John Roberts, writing for the 7-2 majority, concluded that denying generally available state benefits to an organization because of its religious character constitutes discrimination against religious belief, violating the Free Exercise Clause of the First Amendment. Religious organizations now appear to stand on equal footing with secular organizations regarding generally available public benefits.
In a related 5-4 decision four days later, the Court struck down a provision prohibiting religious schools from receiving funds through Montana’s tax credit scholarship program, which provides tuition assistance to families sending their children to private schools. Writing again for the majority in Espinoza v. Montana Department of Revenue, Roberts noted that the Free Exercise Clause protects religious observers against unequal treatment and prohibits laws imposing special disabilities on the basis of religious status. Read along with Trinity Lutheran, Espinoza appears to clear the constitutional way for the use of tuition vouchers and tuition tax credits for religious schools in states that have such programs.
Finally, in a decision of limited scope but significant political importance to American Christians, the Court upheld the Trump Administration’s 2017 decision that religious institutions cannot be required to cover contraceptive services if they provide healthcare insurance plans to employees. For the past ten years, the Little Sisters of the Poor, a Roman Catholic religious institute for women, have been opposing the contraceptive mandate in the Affordable Care Act. The Sisters argued that because contraception is a practice contrary to well-known Catholic moral and religious teaching, the mandate violates their Free Exercise rights. Without expressly addressing the Sisters’ religious freedom rights, a 7-2 majority in Little Sisters of the Poor v. Pennsylvania upheld the Administration’s decision on procedural grounds, relieving the Sisters of the legal obligation to provide contraceptive benefits to their employees. The case ends — at least for the remainder of the Trump Administration — the Sisters’ long battle to conduct their ministry in conformance with Catholic moral beliefs.
The October 2019 term will likely be remembered as one dominated by questions of religious liberty. The Court grappled with balancing the cultural and political demands of secularist activists against the religious-liberty rights of churches and religious organizations. At issue was the right of individual believers and religious organizations to live their public and personal lives, and carry out their religious missions, with fidelity and authenticity. Recent experience suggests this conflict is far from over.
The Rev. James Sweeney practiced religious-liberty law for more than 30 years, representing some of the largest religious organizations in the United States. As a priest of the Anglican Diocese of San Joaquin, he currently serves as assistant head of school and dean of students at Pacific Bay Christian School in the San Francisco Bay Area, and is an alumnus and a member of the Board of Visitors of Nashotah House Theological Seminary.
