Can religious institutions fire employees who carry out some religious instruction even if it would otherwise violate federal antidiscrimination laws?
Can employers refuse to provide contraceptive coverage to employees if they have religious or moral objections?
The Supreme Court (SCOTUS) answered yes to both questions in two important First Amendment cases decided on July 8, 2020.
The two cases continue a line of decisions promoting independence for religious organizations and beliefs under the 1st Amendment. Both were decided 7-2, with liberal Justices Ginsberg and Sotomayor dissenting in both.
In a 2012 unanimous decision, SCOTUS held that courts must stay out of “church government” including the hiring and termination of ministers. Under this ministerial exemption (ME), religious institutions are not bound by federal antidiscrimination laws such as Title VII, because doing so would conflict with the First Amendment.
SCOTUS has now elaborated and expanded this ME to include Catholic school teachers in Our Lady of Guadalupe School v. Morrissey-Berru. They might not be ministers, the majority reasoned, but because teachers play a key role in educating youth according to their faith’s doctrine, this exemption should also apply to them.
The case arose when two fifth-grade Catholic school teachers sued for age and disability discrimination, respectively. Writing for the majority, Justice Alito noted that SCOTUS has never set rigid rules for when the ME applies, nor is the job title important. Instead, “what matters, at bottom, is what an employee does.” And teaching children involves “responsibilities that lie at the very core of the mission of a private religious school.”
An earlier decision from this term protected LGBTQ workers under Title VII. Justice Gorsuch, explained that religious organizations could possibly be excluded from the Title VII prohibition against LGBTQ discrimination. Based on this new decision, religious organizations may feel more comfortable challenging antidiscrimination laws, including discriminating against LGBTQ workers.
Separation of Church and State
In an important case involving the separation of church and state, SCOTUS again revisited the so-called “contraceptive mandate” included in the Affordable Care Act (ACA). The Trump Administration sought to limit a provision in the ACA that mandated employers provide contraceptive coverage for employees, unless they met a relatively narrow exception. In 2018, the Trump Administration expanded those exceptions, allowing for-profit private companies and universities to object on religious and moral grounds to contraceptive care.
In the landmark Hobby Lobby case in 2014, SCOTUS held that closely held corporations with religious objections could avoid providing their employees with certain methods of contraception. In Little Sisters of the Poor v. Pennsylvania, SCOTUS further limited the contraceptive care mandate, holding that “the ACA gives HRSA [Health Resources & Services Administration] broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” This allows the Trump Administration, acting through the HRSA, had the legal right to create as broad of an exemption to contraceptive care as it wanted.
The Roberts Court has generally sided with religious organizations in cases involving the separation of church and state. For example, in 2017 the court held that states must sometimes provide government aid to religious groups. Earlier this term, the court issued a 5-4 decision that prohibited Montana from excluding religious schools in grant programs.
These cases reinforce that the Roberts Court looks with a skeptical eye toward any kind of government interference in religious matters and beliefs.
These cases also foreshadow years of SCOTUS protecting religious organizations from unnecessary and intrusive government intervention.