SCOTUS Delivers Wins for Religious Liberty

July 9, 2020

Wednesday, the Supreme Court delivered two noteworthy victories for religious liberty. In Little Sisters of the Poor v. Pennsylvania, the court upheld a Trump administration policy protecting conscience and religious freedom in the context of the Affordable Care Act ("ACA"). In Our Lady of Guadalupe School v. Morrissey-Berru, the court robustly defined the First Amendment rights of religious schools and institutions to determine who will teach and defend the tenets of their faith.

The first case is a saga that stretches back nearly a decade. Under the ACA, employers had been required to provide "preventative care and screening," which had been interpreted by the Obama administration to include some abortion-causing drugs and services. As a religious organization, the Little Sisters of the Poor raised a conscientious objection to this mandate on the grounds that it contradicted the religious beliefs of the group. Threatened by tens of millions of crushing fines and harassed by those who desired to destroy the right to freely live out one's faith and moral beliefs, the group received a victory in 2017 when the Trump administration decided that it would reverse the oppressive policies of the previous administration and not force entities to cover abortion-causing drugs and related services in violation of their consciences.

As the court observed, "for the past seven years," the Little Sisters, "like many other religious objectors who have participated in the litigation and rulemakings leading up to [this] decision -- have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs." Wednesday, the court vindicated their fight.

In the 7-2 opinion written by Justice Clarence Thomas, the majority ruled that, "[...] the plain language of the statute clearly allows" the Trump administration to do this and promulgate protections under "religious and moral exemptions." As FRC's Travis Weber told me on Washington Watch, the "opinion said basically the government had the statutory authority to issue this rule under the Affordable Care Act and related regulations and related laws." Further, the administration properly followed the Administrative Procedure Act. In addition to delivering a substantial win for religious liberty, the fact that seven justices agreed the administration acted properly affirms the legitimacy of the religious freedom policies the administration had advanced here.

In Our Lady of Guadalupe School, the court outlined First Amendment protections for religious liberty that will have important implications in the years ahead. The case arose because a teacher claimed she was improperly fired from a religious school. Yet as the court noted in an opinion joined by seven justices, religious entities must be the ones to determine who transmits their religious beliefs -- the government cannot meddle here. As Justice Samuel Alito wrote, "[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion."

But which employees carry on the faith of such institutions? As Travis observed, rather than just look at their titles, "the court quite rightly digs down deep, more deeply and says you have to look at what the person does, what the employee does for the institution, whether their role is one in which they're entrusted with carrying forth the doctrines of the institution or the school and says, look, if they are, the school can determine or the religious institution can determine to fire them."

Exactly right. More of such protections will be needed in the years ahead. In this case, as well as the first, the Trump administration's policies and positions advanced through the Department of Justice were vindicated at the court. Both of President Trump's appointments to the court were on the right side of the cases, and Justice Gorsuch joined strong concurrences in both cases (one authored by Justice Alito and the other by Justice Thomas). Alarmingly, Justices Ginsburg and Sotomayor offered words of disdain and hostility to religious belief and dissented in both cases.

Even in the courts, religious liberty hangs in the balance. For those who say elections don't matter in such cases, they need to think again.