SCOTUS again tears down a section of the wall of separation of church and state

First Amendment religious liberty was intended to be a shield from government control over religion in response to the state religions of Europe, and the centuries of sectarian conflict from which many colonists had fled Europe. The government was prohibited from establishing a state religion, and all religions were free to exercise their beliefs.

But under the Roberts Supreme Court, First Amendment religious liberty has now been turned into a sword for certain religious institutions to exempt themselves from the general laws to which everyone is subject, and to grant themselves a “get out of jail free card” for intentional discrimination. The religious views of a minority can nullify a general law and negate the rights of the many. This is not at all what the Founders intended.

Background

Emily London and Maggie Siddiqi explain in a post for the Center for American Progress, Religious Liberty Should Do No Harm (excerpts):

Twenty-five years ago, the federal Religious Freedom Restoration Act (RFRA) was signed into law to clarify and expand upon the right to religious liberty. RFRA outlines that the government “should not substantially burden religious exercise without compelling justification” and that it should only do so if it furthers a compelling governmental interest in the least restrictive way possible. The purpose of this law is “to protect the free exercise of religion” while clearly defining and more robustly protecting the right of religious liberty for all Americans. It passed with widespread, bipartisan support and was triumphed among faith communities, civil rights advocates, and politicians alike. Since the passing of the federal RFRA, 21 states have mirrored the federal statute to adopt similar legislation.

In 2014, however, the U.S. Supreme Court decision in Burwell v. Hobby Lobby marked a major shift in the interpretation of religious exemptions from religiously neutral laws. Rather than simply protecting the rights of religious people, RFRA was expanded and misused to discriminate. By treating two for-profit corporations—craft chain Hobby Lobby and furniture-maker Conestoga Wood Specialties—like individuals with the right to free exercise of religion, the ruling allowed the religious beliefs of the company owners to override those of their employees, rescinding employees’ access to no-cost contraceptive health coverage to which they are entitled under federal law. The ruling affected thousands of employees, and it expanded the use of religious exemptions by redefining the scope of federal RFRA protections to include for-profit corporations. The legacy of the Hobby Lobby decision has continued under the Trump administration as religious liberty is misused to discriminate against vulnerable communities, such as religious minorities, nonreligious people, people of color, women, and the LGBTQ community.

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Though the U.S. Supreme Court has long recognized that religious freedom should not be interpreted to permit harm on others, the Trump administration has redefined the extent of religious liberty protections, establishing a broad license to discriminate. Former Attorney General Jeff Sessions’ guidance on “Federal Law Protections for Religious Liberty”—which he claimed would clarify the existing protections regarding religious liberty—serves as the groundwork for writing discriminatory actions into law. The guidance prioritizes religious exemptions over all other rights, and it defines the constitutional and statutory protections of religious liberty broadly so that they can be widely implemented … The guidance establishes an overarching license to discriminate for the federal government. Moreover, it puts vulnerable populations at risk of being denied equal treatment under the law.

In July 2018, former Attorney General Sessions announced the creation of a Religious Liberty Task Force, which, according to Sessions, will ensure that “all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.” The purpose of the task force is to enforce the 2017 religious liberty guidance from the U.S. Department of Justice, yet such enforcement could promote a license to discriminate on the basis of religious liberty. These and similar initiatives erode the original intent of religious liberty — ironically [perversely], in the name of religious liberty — in order to validate discrimination against the most vulnerable communities.

Read the entire piece for an in-depth examination of government policies being redefined by overreaching religious exemptions from general laws.

U.S. Supreme Court Religious Exemption Cases

The Supreme Court today broadly expanded the “ministerial” exemption in Title VII employment discrimination for religious institutions well beyond the original intent of Congress. Supreme Court strengthens religious protection from discrimination lawsuits:

The Supreme Court on Wednesday strengthened legal protections that shield religious institutions from job discrimination lawsuits.

Opinion in Our Lady of Guadalupe School v. Morrissey Berru, link: https://www.supremecourt.gov/opinions/19pdf/19-267_1an2.pdf

“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,” wrote Justice Samuel Alito for the 7-2 majority. “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.”

A 2012 Supreme Court ruling protects churches, the schools they run, and other religious organizations from lawsuits brought by employees who perform a “ministerial” function. Allowing such suits, the court said then, would invite government interference in a religious institution’s internal affairs.

Wednesday’s ruling involved Roman Catholic schools in southern California that were sued after deciding not to renew contracts for two teachers. Agnes Morrissey-Berru sued Our Lady of Guadalupe School in Hermosa Beach for age discrimination when her contract was terminated, and Kristen Biel sued St. James School in Torrance when her contract wasn’t renewed after she was diagnosed with breast cancer. She said the school violated the Americans with Disabilities Act.

In both cases, the churches said they were protected from discrimination lawsuits. But the 9th Circuit Court of Appeals in San Francisco refused to throw the cases out, ruling that even though the teachers taught some religious subjects, their duties were not ministerial. Morrissey-Berru is not a practicing Catholic and was not required to attend any religious training for most of the time she taught at Our Lady of Guadalupe.

She never led any religious services, never selected hymns at mass and never delivered a sermon. In no way, she argued, did she act as any mind of minister. Biel was Catholic, but her faith was not a requirement for teaching at the school. She, too, said she never performed any ministerial functions.

Justice Sonia Sotomayor, in a dissent for herself and Justice Ruth Bader Ginsburg, said the ruling is based on a simplistic approach that “has no basis in law and strips thousands of schoolteachers of their legal protections.

Justice Sonia Sotomayor in her dissent writes:

“This sweeping result is profoundly unfair. The Court is not only wrong on the facts, but its error also risks upending anti-discrimination protections for many employees of religious entities. Recently, this Court has lamented a perceived “discrimination against religion.” e.g., Espinoza v Montana Dept. of Revenue, ante, at 12. Yet here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs. The inherent injustice in the Court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours. One must hope that a decision deft enough to remold Hosanna-Tabor to fit the result reached today reflects the Court’s capacity to cabin the consequences tomorrow.

I respectfully dissent.”

In a 5-4 decision last week along ideological lines in Espinoza v. Montana Department of Revenue, the justices said states cannot exclude religiously affiliated schools from state scholarship programs, a decision in which SCOTUS tears down a section of the wall of separation of church and state.

As Pete Williams notes in his reporting above:

The court earlier already agreed to hear another religious freedom case during its next term that begins in the fall. The justices will take up a dispute between the city of Philadelphia and a Catholic charity over the suitability of same-sex parents to provide foster care. The court must again decide when enforcement of laws against discrimination goes too far, violating religious freedom.

The Supreme Court has recognized same-sex marriage, and just recently recognized that Title VII protects the LGBTQ community “on the basis of sex” in employment discrimination, but the trend in these so-called religious liberty cases is clear: the court is clearly signaling its intent to hold that same-sex couples may be discriminated against in adoptions based upon a religious exemption from general laws, just as the court allowed personal religious religious beliefs to trump Title VII public accommodations discrimination in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). There is no logical consistency to the Roberts’ court haphazard approach.

The Court next expanded the scope of its Hobby Lobby decision in Little Sisters of the Poor v. Pennsylvania today. Supreme Court allows plan for religious limits to Obamacare contraceptive coverage:

The U.S. Supreme Court on Wednesday cleared the way for the Trump administration to give the nation’s employers more leeway in refusing to provide free birth control for their workers under the Affordable Care Act.

Opinion in Little Sisters of the Poor v. Pennsylvania,  link: https://www.supremecourt.gov/opinions/19pdf/19-431_5i36.pdf

The ruling is a victory for the administration’s plan to greatly expand the kinds of employers who can cite religious or moral objections in declining to include contraceptives in their health care plans.

Up to 126,000 women nationwide would lose birth control coverage under President Donald Trump’s plan, the government estimated. Planned Parenthood said nearly nine in 10 women seek contraceptive care of some kind during their lifetimes.

The Affordable Care Act, better known as Obamacare, gives the government authority to create the religious and moral objections, said Justice Clarence Thomas for the court’s 7-2 majority.

The Department of Health and Human Services “has virtually unbridled discretion to decide what counts as preventive care and screenings,” and that same authority “leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own guidelines,” he said.

In other words, the Court upheld the exemption from the ACA’s birth-control mandate for any private employer with religious and moral objections.

Well, Justice Thomas, using your logic, this means that the next Democratic administration can write new rules to provide contraceptive coverage under “Obamacare” without exemptions. That makes this opinion transactional, and not grounded in sound legal reasoning or principles.

In dissent, Justices Ruth Bader Ginsburg and Sonia Sotomayor said the court in the past has struck a balance in religious freedom cases, so that the beliefs of some do not overwhelm the rights of others.

“Today for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree” and “leaves women workers to fend for themselves” in seeking contraceptive services, they said.

Justice Kagan in her concurrence said she would “uphold HRSA’s statutory authority to exempt certain employers from the mandate, but for different reasons,” and expressed doubt that the exemption will survive Administrative Procedures Act (APA) review when that issue goes back to the lower courts.

Kagan’s concurrence in Little Sisters suggests that the over-breadth of the new accommodation is an APA problem; and that’s a roadmap for invalidation of the accommodation in further litigation. So this may be a short-lived victory. Definitely not the last word.

Women’s groups condemned the ruling. The National Women’s Law Center said more than 61 million women get birth control coverage through Obamacare.

“The Supreme Court’s decision will leave their ability to receive this critical coverage at the whim of their employers and universities,” the group said. “This decision will disproportionately harm low-wage workers, people of color, LGBTQ people, and others who already face barriers to care.”

The answer to this ridiculous assertion of “personal religious beliefs” by a private employer overriding the right of women to receive insurance coverage for contraceptives is to do away with employer based health insurance entirely – thus removing the discriminating employer from the equation – and to enact a single-payer government health care plan, like the rest of the industrialized world. The government cannot have a religious belief, ipso facto, there could be no religious exemption. Problem solved.