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“In 2017, the Trump administration issued new rules that expanded an exemption from the [contraception] mandate to allow private employers with religious or moral objections to opt out of providing coverage without any notice. [On Wednesday], by a vote of 7-2, the Supreme Court in Little Sisters of the Poor v. Pennsylvania rejected a challenge from two states that had argued that the new rules violate both the ACA itself and the federal laws governing administrative agencies.” SCOTUSblog
Also on Wednesday, “by a vote of 7-2, the court held in Our Lady of Guadalupe School v. Morrissey-Berru that the [ministerial] exception [to employment discrimination lawsuits] also forecloses lawsuits by two teachers at Catholic elementary schools in southern California. Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students, and the court – in an opinion by Justice Samuel Alito – agreed.” SCOTUSblog
See our previous coverage of Little Sisters. The Flip Side
The right applauds the decisions, arguing that they correctly protect religious liberty.
“While [the Little Sisters] ruling determined on procedural grounds that the administration was within its rights to exempt some employers from the mandate, it did not address the question of whether the Religious Freedom Restoration Act compels exemptions of some kind for employers with religious objections, as Justices Alito and Gorsuch persuasively argue that it does… A better outcome would have been to apply the RFRA, considering whether the mandate serves a compelling government interest, whether it imposes a substantial burden on religious employers, and whether it accomplishes its goals by the least restrictive means possible.”
The Editors, National Review
“No one, from the Obama-administration officials who promulgated it to the pro-abortion-rights feminists tearing out their hair over this decision, has once articulated a satisfactory reason for why anyone — let alone Catholic nuns or Christian business owners — must be conscripted into funding an employee’s birth control…
“The belief that the government, or employers compelled by the government, ought to subsidize contraception stems from a fundamentally incorrect, irrational view of contraception as a necessary component of holistic health care. On this view, a properly functioning female reproductive system is diseased and pregnancy is a disease to be prevented… One very well might like to have birth-control drugs for one reason or another, but when used for contraceptive purposes rather than medical ones, it is not health care by any reasonable definition of the term; it prevents no disease and cures no malady.”
Alexandra DeSanctis, National Review
Regarding Morrissey-Berru, “In his majority opinion, Samuel Alito writes that the ministerial exception applies regardless of which discrimination law is in question. The point of that exception is to exempt religious organizations from outside scrutiny of those decisions, as the First Amendment protection of free expression of religion must take precedence…
“One might not need to be called a ‘minister’ for a ministerial exception, but what is the functional limit of that exception? Is there any? Would churches and schools be able to apply it to secretaries and janitors? What about administrative personnel at schools that might come into contact with students but otherwise have no teaching role?… The problem is that identifying ministerial roles is not the business of courts — it’s the business of the religious institutions themselves. At least, it is now, in Alito’s controlling opinion.”
Ed Morrissey, Hot Air
“Don’t forget the context. Last month’s ruling in Bostock v. Clayton County extended federal antidiscrimination law to sexual orientation and transgender status. A religious school in progressive California might worry about being sued for dismissing a lay math teacher who began living a proudly gay lifestyle in defiance of the church’s teachings. Justice Neil Gorsuch’s opinion in Bostock dismissed such concerns with a pat line about how those ‘are questions for future cases.’ There will be a blizzard of them, no doubt. It’s a hopeful sign for religious liberty that even liberal Justices Stephen Breyer and Elena Kagan joined the Guadalupe majority to expand the ministerial exception.”
Editorial Board, Wall Street Journal
“The ministerial exception protects free exercise of religion within religious institutions. But most religious people don't work there. Thinking strictly in terms of religious liberty, I'd far rather see religious institutions lose the protections specifically at issue in Morrissey-Berru — which is to say, subject them to the same rules about age and disability as everyone else — if that could be somehow traded for broader protection of religious exercise outside of religious contexts…
“To use the gay marriage example from Obergefell, which is where many of these conversations are focused, if you believe God doesn't condone gay marriage, the implications for your behavior don't depend on your working in a religious institution. It's just as applicable, for instance, if you run a cake shop or arrange flowers — but you get no ministerial exception there… [The ministerial exception] operates on too narrow an understanding of what [free exercise of religion] entails.”
Bonnie Kristian, The Week
The left criticizes the decisions, arguing that they wrongly allow religion to be used as an excuse to discriminate.
The left criticizes the decisions, arguing that they wrongly allow religion to be used as an excuse to discriminate.
“Let’s pretend there was an order of nuns with a particular devotion to the Sacred Heart of Jesus. So much so that the order had, over the years, decided that any human heart was a holy symbol, and it was immoral to mess with it, even if you were a physician doing cardiac surgery. Following their consciences, these nuns banned heart-related care from their employees’ health policies. That affected thousands of workers, many of whom did not share their religious convictions. Still, the nuns noted, their insurance coverage was generous. Except for that one thing…
“Most Americans believe women should have the right to terminate a pregnancy, at least in the early months, but the whole idea makes a lot of people very uncomfortable. However, the country is, in general, a big fan of contraception. And easy access to birth control is the key for keeping the abortion rate low. Basically, the president and the Little Sisters have struck a big blow for unwanted pregnancies.”
Gail Collins, New York Times
“Whenever we talk about women’s reproductive freedom in America being stripped away by a thousand tiny cuts, we aren’t just referencing whether clinics in Louisiana may survive until the next regulation is enacted. We are talking about a web of decisions that demote women to bystanders. With these religious objector cases, we are witnessing the blurring of women’s constitutional and statutory rights into the background as the interests of everyone else, including their religious bosses, are positioned as singular and urgent.”
Dahlia Lithwick, Slate
“We in America take it as given that your boss gets to decide what kind of insurance you have, and if you lose your job then you lose coverage. In most every industrialized country that idea is regarded as nearly obscene, and if we wanted to we could simply do away with it… [and] move to a system where nobody is dependent upon their job for health coverage.”
Paul Waldman, Washington Post
Regarding Morrissey-Berru, “After Wednesday’s decision, every competent lawyer counseling a religious institution will advise their client to foist some minimal ‘religious duties’ on lay employees to shield themselves from lawsuits. The powerful law firm Alliance Defending Freedom has already mastered this trick. In 2015, its lawyers advised religious employers to dump some trivial religious responsibilities on receptionists—like directing them to ‘provide religious resources’—so they would qualify as ‘ministers’ and lose legal protections…
“Morrissey-Berru comes on the heels of Espinoza v. Montana, a 5–4 decision that will force a majority of states to fund parochial schools [if they also fund secular private schools]. Taken together, these two decisions mark a startling expansion of constitutional ‘religious liberty.’ Most states must now provide taxpayer money to parochial schools—yet they are handcuffed from enforcing their own civil rights laws against the institutions they fund. The Supreme Court has not only bulldozed the wall separating church and state; it has also handed religious institutions a trump card they can use when the state asks them to follow the rules that apply to the rest of us.”
Mark Joseph Stern, Slate
Some, however, argue that “The elementary school teachers considered in today’s case taught religion as well as secular subjects and worshiped alongside the students. It seems altogether reasonable to include them within the ministerial exception, especially to avoid judicial nit-picking over just how much religious instruction is necessary to make a teacher ‘ministerial.’ Breyer and Kagan’s votes are defensible on those terms…
“And it could be argued that, by joining the conservatives here, Breyer and Kagan helped bring about the result in the LBTQ case, in which Gorsuch and Roberts defected from conservative orthodoxy. Today’s justices don’t horse-trade cases in any overt sense. But they all fully understand the gravitational effects that the different cases decided in a given term have on one another. Today, church autonomy is ascendant and religious exemptions have been substantially extended. But we have to assess that result in the context of the other blockbuster decisions of this term, in which liberals won some unexpected victories.”
Noah Feldman, Bloomberg
