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Supreme Court decisions on 3 critical religious freedom cases are just days away

Written by William C. Duncan

June 26, 2020

More laws are impinging on religious organizations, according to an attorney helping drive cases before the U.S. Supreme Court.

Right now the court has three major religious freedom cases on its docket. Decisions are expected any day.

Why do they matter?

Luke Goodrich, an attorney at the Becket Fund for Religious Liberty and author of Free to Believe: The Battle Over Religious Liberty in America, sat down with us to talk Supreme Court cases and religious freedom.

The answers have been edited for length and clarity.

William Duncan (Sutherland religious liberty fellow): Can you tell us a little bit about the religious freedom cases the Supreme Court will be deciding?

Goodrich: Sure. So, two of the cases Becket is handling itself. The first is Little Sisters of the Poor v. Pennsylvania. And this is now the third time the Little Sisters have come to the Supreme Court.

Now for those who aren’t familiar with the background, it all started almost a decade ago, when the HHS during the Obama administration issued a regulation requiring most health insurance plans to cover all forms of contraception, including those that could cause an abortion. The Little Sisters of the Poor are an order of Catholic nuns who devote their lives to caring for the elderly poor, and they could not, in good conscience, use their health insurance plans to provide access to contraception and abortion. They filed a lawsuit under the Religious Freedom Restoration Act, and their case went up to the Supreme Court.

Once they got emergency relief. The second time the court heard the case on the merits. Justice Scalia died while the case was pending. The court ultimately eliminated a bad ruling against the Little Sisters from the lower court and sent the case back. They basically told the government, “Surely the most powerful government in the world can find a way to deliver contraception without using Catholic nuns.” After that, the Trump administration HHS issued a new regulation that protected the Little Sisters of the Poor.

That should have been the end of the matter, but unfortunately some state attorneys general sued. Pennsylvania and California sued the Trump administration, arguing that it was unlawful for the federal government to protect the religious freedom of the Little Sisters. And surprisingly, the Third Circuit Court of Appeals and the Ninth Circuit both ruled against the religious accommodation, and so the Little Sisters have appealed again to the Supreme Court, and the basic question in front of the court is: Is it lawful for the federal government to protect the religious practices of the Little Sisters, and to give them a complete exemption, like churches are exempt, from using their health insurance plans to cover contraception and abortion?

The second big case that the Becket Fund is handling is actually a pair of cases. One is called Our Lady of Guadalupe School v. Morrissey-Berru and the other is called St. James Catholic School v. Biel. Both of these cases involve Catholic schools in California that are seeking to form religious communities that bring children up in the Catholic faith. Both schools let go of fifth-grade teachers for various reasons. The teachers claim that they were let go for discriminatory reasons; one claims age discrimination and one claims disability discrimination.

The central issue in the case is a First Amendment doctrine called the ministerial exception. And this is a doctrine that protects the ability of churches and other religious organizations to choose their leaders without undue government interference. So in this case, the teachers were both the primary means by which the Catholic Church inculcated the Catholic faith in students – they taught daily religion classes, taught the children the seven sacraments, prayed with them, helped plan Masses, took them to Mass. So, they’re spending more time on religion with these children than even the parish priest. The question is whether the government can dictate to Catholic institutions who is going to teach the Catholic faith to the next generation.

The third big case pending at the Supreme Court right now is called Espinoza v. Montana Department of Revenue. This is a case about an old state constitutional limit called a Blaine Amendment. And there are many states that have these amendments. Montana had a very small tax credit program, a scholarship program where any individual taxpayer could donate up to [$150] to a private organization that gave scholarships so low-income children could attend any private school of their choice, including a religious school.

This sort of a program is perfectly permissible under the federal Constitution. The Supreme Court in a case called Zelman v. Simmons-Harris said that as long as the government is giving out vouchers or scholarships on an evenhanded basis, and the recipients are the ones making the choice of where to use it, that’s constitutional.

The problem is, Montana, and a number of other states, have Blaine Amendments that go even further than the federal Constitution in what they would call “separation of church and state.” These amendments were enacted back in the mid- to late 1800s during a time of intense anti-Catholic fervor, and they were originally designed to keep funding for the common schools – the public schools, which were Protestant dominated – and to cut off any sort of funding for Catholic schools, which were deemed sectarian. So, these constitutional amendments prohibit any sort of government funding for “sectarian” schools. Back then that was code for Catholic. Nowadays, these amendments are invoked to cut off government funding from any type of religious school, or other types of religious institutions. So the question for the Supreme Court is if these old state anti-religious provisions are a violation of the federal Free Exercise Clause.

Duncan: Do you have any thoughts about why the court seems to be hearing so many religious freedom cases right now?

Goodrich: I would say that the court’s jurisprudence on religious freedom lacks clarity in a number of places. With some of the changes in the court’s composition, and also given some of the renewed urgency around issues of religious freedom, you have the increasing number of conflicts we’ve been seeing. Then, the increased number of legal conflicts leads to more circuit splits [different regional courts coming to different conclusions about the law] and more need for the Supreme Court to intervene and bring clarity, and so hopefully that’s what the court is going to be able to do.

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