Key Points

• The U.S. Supreme Court is taking the unprecedented step of hearing oral arguments by phone in May.
• The court will be considering a key religious liberty case involving the Little Sisters of the Poor and the Affordable Care Act.
• With the Fairness for All Act, Congress can avoid the mistakes of the Affordable Care Act that resulted in years of litigation by religious groups.
• The Fairness for All Act balances protections for the LGBT community with protections for people of faith and creates new religious liberty protections in federal law.

The U.S. Supreme Court has decided to conduct oral arguments by phone next month. This effort to adjust to ongoing pandemic conditions will be a first for the court.

One of the cases the court will hear involves an unprecedented issue – whether a state can sue the federal government for protecting religious liberty too much.

This case, of course, is Little Sisters of the Poor v. Pennsylvania. The facts of the case are a little convoluted, but the basic timeline is:

• In 2009, Congress enacted the Affordable Care Act. It included a provision saying the Department of Health and Human Services could require employers to cover certain health costs for female employees without a copay.
• In 2012, HHS issued a rule saying employers had to cover all forms of contraception approved by the Food and Drug Administration. The rule had a very narrow religious exemption, allowing only church employers to choose whether to comply with the mandate.
• In 2013, the Little Sisters of the Poor, a group of Catholic nuns who operate a charitable organization to care for the elderly poor, challenged the mandate as a violation of their religious beliefs.
• In 2014, the S. Supreme Court ruled that the mandate was unconstitutional in the specific instance of Hobby Lobby, a family-owned corporation that objected to offering a small portion of the required contraceptives that they believed would cause an abortion.
• In 2016, the Supreme Court sent the Little Sisters’ challenge back to a lower court to see if the federal government could compromise in a way that allowed the nuns to act on their beliefs.
• In 2017, HHS issued new guidelines that broadened the religious exemption to the contraception mandate. The new direction was that those with sincere religious beliefs or moral convictions against offering contraceptive coverage would not be required to.

In response to the new rule, Pennsylvania and New Jersey sued, saying HHS could not act independent of a court order to lessen the burden on religious liberty in the original contraception mandate. This strange claim is what the Supreme Court will be hearing arguments about, by phone, next month.

The long and complicated litigation over the HHS contraception mandate prompts another idea – not an unprecedented one, but one that is increasingly rare in practice. That idea is that when Congress enacts laws that will likely impact religious liberty, they could balance the interests they are trying to advance with clear and effective protections for religious liberty. This would obviate the need for agencies and courts to backfill those protections, or worse, not extend them at all.

Congress has done this in the past and could do so again.

For instance, the pending Fairness for All Act (FFA) would broaden federal civil rights laws to end discrimination against LGBT people, but would also provide religious liberty protections that could effectively prevent many potential conflicts between the new law and the practices of churches, other religious organizations, and people of faith. It also creates new religious protections that have not previously been codified in federal law and which would be politically impossible to achieve without some kind of compromise.

To understand the significance of the FFA’s approach, we can compare it to another piece of legislation pending in Congress, the Equality Act.

The Equality Act is similar to the contraceptive mandate in that it creates rules likely to implicate religious practice. Specifically, the act would add to current federal discrimination law the terms “sexual orientation” and “gender identity” as protected categories. Thus, it would impact decisions about hiring, housing and use of facilities for all but very small businesses. In most instances, employers and businesses are unlikely to object, but for religious groups, these kinds of decisions are fraught with moral significance. Employees are often representatives of the faith, and a religious organization’s purpose and message are advanced or impeded by those they employ and what they do with their buildings.

Current law includes exemptions for religious groups so they can pursue their faith-based missions without interference from the government, but the Equality Act does the opposite. It rolls back existing protections and heightens, rather than decreases, conflict between interests (of the LGBT community and of people of faith) that need not be at odds.

For instance, the Equality Act specifically provides: “The Religious Freedom Restoration Act of 1993 shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” In other words, the federal statute that prevents the government from burdening religious practice in all but the most unusual circumstances where the government has a compelling reason to do so would no longer protect religious people if the burden on their practice was caused by the new laws related to gender identity or sexual orientation.

The FFA, by contrast, adds the same terms to federal law, but while doing so provides room for religious schools, faith-based social service providers, religious employers and others to pursue their religious missions. For example, it allows churches to ask users of their facilities to abide by the standards of the church. It also broadens the legal definition of religion to include nonprofits with a religious mission.

FFA even provides some protection for small for-profit businesses that want to operate consistent with their beliefs by exempting those small businesses from the duty to provide some services. This would be the first such specific protection for wedding service providers who have been embroiled in litigation in a handful of states for declining to participate in ceremonies at odds with their faith commitments.

Importantly, FFA also corrects current legal rules that have been used to limit the ability of people of faith to live consistent with their beliefs in everyday life. To take one example, it requires employers to make a real effort to accommodate the religious practices of employees. Current law only requires a nominal effort by employers, which creates a great burden for employees who request time off on days of religious significance.

Though the current pandemic has limited Congress’ ability to deal with most other issues, the coming “all clear” on gatherings, including congressional work, would be a good time for the legislative branch to get back to an approach to issues affecting religious freedom that takes into consideration conflicts the law would create for churches and people of faith. That is its job, of course, and precisely what an earlier Congress expected when it directed that all federal laws accommodate religious practice. If Congress will take this constructive approach, it may start accomplishing things as unprecedented and noteworthy as hearing court arguments over the phone.