The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)

The Supreme Court issued opinions in two cases with religious liberty implications on Wednesday. They ruled 7 to 2 in favor of Our Lady of Guadalupe School and Little Sisters of the Poor.

In Our Lady of Guadalupe School v. Morrissey-Berru, they found that teachers in Catholic schools fall under the ministerial exception in federal anti-discrimination law. Justice Samuel Alito wrote the Court’s opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Elana Kagan, Neil Gorsuch, and Brett Kavanaugh. Justices Sonia Sotomayor and Ruth Bader Ginsburgh dissented.

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate,” Alito wrote. 

He also noted that Agnes Morrissey-Berru, formerly employed at Our Lady of Guadalupe School, a Catholic primary school in the Archdiocese of Los Angeles, signed an agreement that stated teachers were expected to “model and promote” Catholic “faith and morals.” Alito also pointed out that she, like all teachers in the Archdiocese, was “considered a catechist.” She also provided religious instruction and prepared her students in preparation in Mass and for communion and confession. He also said she prayed with her students and taught and recited with her students the Apostles and Nicene Creeds as well as other prayers.

The ruling addressed a second case that concerned the late Kirsten Biel, who taught at St. James School, also under the Archdiocese of Los Angeles. 

Alito pointed out that expectations for and responsibilities of Biel’s were the same as Morrissey-Berru’s. 

“The independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government,'” Alito wrote. “This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.”

He said the “ministerial exception” was based on that insight.

“When the so-called ministerial exception finally reached this Court in Hosanna-Tabor, we unanimously recognized that the Religion Clauses foreclose certain employment discrimination claims brought against religious organizations,” Alito wrote.

He argued that the ministerial exception couldn’t be applied solely based on the title of the employee in question. Many denominations and faiths do not use the title of “minister.” He also said it couldn’t be determined based on formal academic training either. 

“What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition 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,” Alito stated. 

“Religious education is vital to many faiths practiced in the United States,” he added. 

“When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow,” Alito concluded.

In a concurring opinion, Thomas, joined by Gorsuch, argued that “the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.'” 

“What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis,” Thomas wrote.

Religious liberty advocates applauded this decision.

“We applaud the Supreme Court for recognizing that the Constitution bars the government from interfering in the independent employment decisions of religious organizations,” said Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute. “There should no longer be any doubt that religious schools and institutions have the right to freely choose who will preach their religious message, teach their religious doctrine, and lead our future generations according to their religious tradition.”

“As the Supreme Court has made clear in the past and has now made clear again, the First Amendment bars the government from interfering with a religious group’s employment decisions regarding its ministers. The court’s decision today clears up disagreements in the lower courts about the right way to define ‘minister,’ concluding that any definition should be primarily based on the religious functions an employee is asked to perform as defined by those qualified to make that judgment: the religious groups who know their faith best. In so doing, the court has respected the autonomy of faith-based schools and prevented the government from interfering with the internal operations and autonomy of religious organizations. In other words, the court has ruled in accordance with one of the primary purposes of the First Amendment,” Alliance Defending Freedom Senior Counsel and Vice President of Appellate Advocacy John Bursch said in a released statement.

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court ruled that the Trump administration had the authority under the Affordable Care Act to promulgate religious and moral exemptions.” The Little Sisters of the Poor wanted an exemption from providing contraceptive coverage under the Affordable Care Act.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Kagan wrote an opinion concurring in the judgment, and Justice Breyer joined her. Justice Sotomayor and Ginsberg dissented.

Thomas noted that the Affordable Care Act gave the Heath Resources & Services Administration (HRSA) “virtually unbridled discretion to decide what counts as preventive care and screenings.” 

He noted that Congress giving HRSA that grant of authority empowered them to identify and created exemptions within their guidelines. 

“Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions,” Thomas wrote.

His ruling was not based on the Religious Freedom Restoration Act (RFRA) because he said the Court already settled that in the Hobby Lobby case.

“It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as ‘Federal law’ or ‘the implementation of [Federal] law,'” Thomas argued. “Additionally, we expressly stated in Hobby Lobby that the contraceptive mandate violated RFRA as applied to entities with complicity-based objections… Thus, the potential for conflict between the contraceptive mandate and RFRA is well settled.”

He stated that previous Supreme Court decisions instructed federal departments to consider RFRA because they left it to those departments to come up with a solution. 

“(W)e made it abundantly clear that, under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities,” Thomas wrote. 

“We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion,” Thomas concluded.

One pro-life group expressed dissatisfaction with the basis of the ruling.

“It is truly unbelievable that they continue to have to go to Court to defend their constitutional rights and that the possibility still exists that they may be dragged into Court once again. The Court says today that the Trump Administration has the authority under the Affordable Care Act to promulgate this religious liberty exception, leaving the door open for another more hostile administration to undo it,” Penny Nance, CEO & President with Concerned Women for America said. 

To her point,  Massachusetts Attorney General Maura Healey and Oregon Attorney General Ellen Rosenblum, Co-Chairs of the Democratic Attorneys General Association, said in a statement that this fight is far from over.

“The Supreme Court just ruled that your boss or your university can, based on their personal beliefs, take away your birth control coverage. Today’s decision is dangerous, and the effects of this ruling will extend far beyond just contraception coverage. Employers should never be allowed to discriminate against employees, especially when it comes to the type of health care they need, and that includes access to birth control. As the Trump administration and Republicans continue to chip away at access to affordable health care, Democratic AGs will continue to fight back. Most importantly, we must all work together to elect leaders who will fight with us. This is far from over,” they said.

Bursch with Alliance Defending Freedom pointed out that Pennsylvania and New Jersey’s objections were without merit.

“The government has no business forcing pro-life and religious organizations to provide drugs and devices that can destroy life. HHS designed its protections to be consistent with previous Supreme Court rulings and ensure that such organizations can pursue their missions consistent with their beliefs as the First Amendment allows. The high court was right to reject each and every one of the grounds that the court of appeals used to strike down those protections. The states that challenged the HHS rules were unable to find a single individual plaintiff who was allegedly harmed by the religious and moral exemptions. That shows that contraceptives are widely available, and that no compelling reason exists for the government to violate the religious and moral convictions of organizations who don’t wish to provide abortifacients and artificial contraception,” he said.

Another pro-life group praised the ruling. 

“Today is a major victory for President Trump, who has courageously fought to protect the Little Sisters of the Poor from the Obama-Biden HHS abortifacient mandate,” said SBA List President Marjorie Dannenfelser. “We hope today’s victory at the Supreme Court will finally allow the Little Sisters to carry out their mission to love and serve the elderly poor without having to violate their conscience. The Sisters, along with other religious and moral objectors who conscientiously object to abortion, should never be forced to go against their consciences to provide abortion-inducing drugs in their health care plans. We commend President Trump for standing strong for the Little Sisters of the Poor – his record stands in stark contrast to that of Joe Biden, who helped launch this assault as Obama’s Vice President nearly a decade ago.”

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