Supreme Court

A Big Day for Religious Liberty at the Supreme Court

On the penultimate day of the October 2019 term, the Supreme Court expands the ministerial exception and upholds exemptions to the contraception coverage mandate.

|The Volokh Conspiracy |

Today, on what appears to be the penultimate day of the current Supreme Court term, the justices handed down two decisions supportive of religious liberty and conscience, both by lopsided margins. Tomorrow the Court is scheduled to release the remaining opinions of the term, and may also issue additional orders.

The first case released this morning was Our Lady of Guadalupe School v. Morrissey-Berru, in which the Court held, 7-2, that the so-called "ministerial exception" to federal employment discrimination laws applies to teachers at religious schools who engage in religious instruction. Justice Alito wrote for the Court joined by the Chief Justice and Justices Thomas, Breyer, Kagan, Gorsuch and Kavanaugh. Justice wrote a concurring opinion joined by Justice Gorsuch. Justice Sotomayor, joined by Justice Ginsburg, dissented.

Here is the beginning of Justice Alito's opinion for the Court:

These cases require us to decide whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith. The First Amendment protects the right of religious institutions "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952). Applying this principle, we held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, where she taught. Our decision built on a line of lower court cases adopting what was dubbed the "ministerial exception" to laws governing the employment relationship between a religious institution and certain key employees. We did not announce "a rigid formula" for determining whether an employee falls within this exception, but we identified circumstances that we found relevant in that case, including Perich's title as a "Minister of Religion, Commissioned," her educational training, and her responsibility to teach religion and participate with students in religious activities. Id., at 190–191.

In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich's. Although these teachers were not given the title of "minister" and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. 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.

In a second opinion released today, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, seven justices rejected a series of challenges to the Trump Administration's creation of a broad religious and morality-based exemption from the so-called "contraception mandate." Justice Thomas wrote for hte Court, joined by the other conservative justices. Justice Alito also concurred, urging a more expansive ruling, joined by Justice Gorsuch. Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Ginsburg dissented, joined by Justice Sotomayor.

Under the Affordable Care Act, employer provided health insurance is required to provide preventative care at no cost to the employee. Under guidelines promulgated by the Health Resources and Services Administration, covered preventative services include all forms of FDA-approved contraception. Thus, employer provided health insurance must cover contraception, save for some religious employers that are exempted or that receive an accommodation.

In order to accommodate a broader range of employers, the Trump Administration issued an Interim Final Rule exempting employers with religious or conscientious objections from the requirement, prompting a challenge from some Blue State attorneys general. The U.S. Court of Appeals for the Third Circuit looked favorably on these challenges. The Supreme Court did not.

In today's opinion, seven justices rejected the claim that the Department of Health and Human Services lacked the authority to issue this accommodation. Justice Thomas, for the Court, held that the plain language of the ACA allowed for the creation of this exemption. Justice Kagan did not find the ACA's language to be so clear, but believed HHS had adopted a reasonable interpretation of the relevant statutory language that merited Chevron deference.

The Court also rejected the claims that the Trump Administration's action was procedurally defective. Although HHS has never published a document titled a "General Notice of Proposed Rulemaking," it satisfied all of the specific notice requirements provided for in the Administrative Procedure Act. Moreover, Jsutice Thomas added, even if there had been a superficial defect in the government's compliance, there was no "prejudicial error" that would justify invalidating the rule.

Perhaps more significantly for administrative law, the Court held that the Third Circuit was wrong to demand evidence that the agency "maintained an open mind" during the rulemaking process. The APA contains no such requirement, Justice Thomas explained, and courts have no lawful basis to impose one. Instead, a reviewing court should stick to evaluating whether the agency complied with the "objective criteria" specified in the APA. This is a significant holding.

Concurring in the judgment, Justice Kagan noted that there were other challenges against the exemption still to be considered by the lower court, and she identified several reasons why she thinks those claims might prevail. She nonetheless joined the judgment of the Court, so Little Sisters had the same ultimate breakdown as Our Lady of Guadalupe.

The Court is scheduled to issue opinions tomorrow (Thursday), and this should be the last opinion day of the term. So, if the Court finishes up its work, that means we will learn the fate of subpoenas targeting Donald Trump's financial records and of eastern Oklahoma.

A final tidbit: As of today, Chief Justice Roberts has only dissented in a single decision this entire term. Tomorrow we will see whether this Kennedy-esque streak continues.

NEXT: How Migration Restrictions Undermine Meritocracy

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  1. penultimate is one of my favorite words

    1. It’s my second least favorite word.

    2. Perhaps second only to antepenultimate.
      But the reply from TwelveInchPianist suggests he is antipenultimate.

      1. Good one.

  2. I’ve been waiting all day for Blackman to post something about “Blue July” but perhaps he is out drinking today instead of prognosticating about loses in the Supreme Court.

    1. Red July 8.

      Earlier July opinions are politically neutral.

  3. With all due respect, the Court dramatically expanded “minister” well beyond someone who offers religious instruction. Morrissey-Berru’s brief opposing cert makes this abundantly clear: https://www.supremecourt.gov/DocketPDF/19/19-267/120481/20191028152303479_Brief%20in%20Opposition%20to%20Petition%20for%20Writ%20of%20Certiorari%20No.%2019-267%20Morrissey-Berru%20v.%20Our%20Lady%20of%20Guadalupe%20Church.pdf

    1. I thought Adler’s take was accurate. Can you be more specific on what he got wrong?

      1. No, Minister.

    2. When I read the briefs, my immediate thought was that the plaintiffs (and the 9th circuit) were essentially trying to re-litigate Hosanna-Tabor. Nothing in the oral arguments changed that impression of mine. “The teachers spend too much time teaching secular subjects” was never going to be a winning argument.

  4. If Biden wins, he will reinstate the mandate and we will be back at SCOTUS for the RFRA challenge.

      1. I expect a 6-5 vote.

      2. Its already required to use the least restrictive means, which already exists in other cases, so its not even theoretical: government pays for it. I’m not sure why someone would waste the time re-trying it. Well, ok. I know why people would waste their time.

        All this case did was challenge a requirement such a religious org fill out a form saying we’re one such entity, because that would position them as participating in getting someone contraception.

        Government points gun at religion: Give them contraception!

        Religion: No!

        Government: Well, tell us so officially and we will!

        Religion: No! This is a mess started by you — you deal with it!

  5. I have enjoyed reading the feminist angst this decision has caused. They act like “free birth control” is the same as “access to birth control.” No one took away their birth control. All that the government said is if you work for an employer who doesn’t want to be forced by the government to cover such a drug, you have to pay $10/month for it.

    1. I think the term “slut pills” is more apt than “birth control pills”.

      1. I love it how straight conservative men fight to make women pay out of pocket for birth control while the Trump White House mandates that health insurance cover gay men’s $1800/month PrEP pill. Good work nitwits!

        1. Is that a charge of hypocrisy? You’re going to have to try harder than that…it doesn’t quite line up as similar like you think it does. You stink at comparisons and analogies.

          1. Free love—conservative men want gay men to have it but not straight men in 2020.

            1. Without having any direct knowledge, I’m going to go out on a limb and suggest that conservatives would surely prevent insurance from paying for PrEP pills if they could, but know they can’t…

        2. The Left might have done better if they mandated health insurance cover all forms of birth control, not just those available to women. Every have to buy condoms? Those things are expensive. Same thing with vasectomies. Those can cost thousands all out of pocket. Almost no medical insurance covers the procedure.

          “Free” birth control was just political payola to feminists. And making it a controversy by the usual agitators has kept the mob busy for quite a few years.

          1. The thing is that the burden of birth falls more on one gender than the other.

            But yeah, I’d be down with insurance covering condoms.

            political payola to feminists
            ZE FEMINISTS!

            1. The thing is that the burden of birth falls more on one gender than the other.

              The physical burden certainly does. But that’s no reason the fiscal burden should

            2. Yeah tell a guy who pays 35% of his pre-tax income as child support for a kid he never gets to see that the “burden” of having children rests more with one gender.

          2. Straight men are the primary beneficiaries of women taking birth control in 2020. My advice to you is go to child support debt day at family court and then you will probably be donating to a GoFund account for women that don’t want to get pregnant!

      2. Careful, even Rush has to apologize for saying that paying for a woman’s birth control was subsiding some woman being a slut. The Southern Baptists and Jews all put their 15 year old daughters on the pills so they don’t have unexpected grand kids.

        1. Dude called a particular woman a slut with no evidence.

          Rush can get stuffed.

          1. Slut? Maybe. Harlot or Shrew, definitely.

            1. Why is a married woman who doesn’t want any more kids a slut, harlot, or shrew?

              Or an unmarried woman who wants to enjoy the same sexual freedom as an unmarried man, for that matter?

              1. Unfortunately our welfare system incentivizes poor women to have babies and the fathers often get stuck with child support debt. So in a city like Baltimore there is a Planned Parenthood clinic easily accessible to all with free everything…and Baltimore still have a major “unplanned” pregnancy problem. So the men often end up in the illegitimate economy because the AG takes child support out of legitimate paychecks. Like most Supreme Court rulings this ruling will have little to no real world impact but that doesn’t exculpate the idiots that brought this action.

              2. Since abortion is solely the woman’s choice, unmarried women have far more sexual freedom than unmarried men. The women do not have to worry about unplanned pregnancies, since they always have an out; men do.

              3. I speaking specifically and only about the woman that Rush apologized too.

                1. And you think she’s a harlot or shrew.

                  Always nice to use sexist insults against women you don’t agree with.

    2. It’s not free, it’s just covered by insurance.

      Costs vary, as do people’s means to pay $10/month.

      7-2 looks good on the law, but don’t argue the pragmatics.

      1. Its the libs that think its ‘free’ not conservatives.

        1. Liberals also like to call public education “free” even though it is more expensive per student then better of private education.

          To the libs anything the government provides or mandates big companies provide is “free.”

          1. It’s the right that’s talking about free birth control, chief.

            1. The last few weeks of SCOTUS opinions “level the field” for the right to free exercise of religion and right to abortions/state interest regulation of abortions. “Substantial burden” without a balancing test is the judicial standard. June Medical reinforced Casey and the Kenedy formulation of a substantial burden. That same standard was set for laws regarding the free exercise of religion.

              1. I’m pretty agnostic about this case; I will have to see how it ends up playing out over time.

                But this comentariat is advocating for policies that go well beyond the case.

      2. “It’s not free, it’s just covered by insurance.”

        Really? ” These cases concern regulations promulgated under a provision of the ACA that requires covered employers to provide women with “preventive care and screenings” without “any cost sharing requirements.””

  6. It was a big day for religious liberty, as long as you define religious liberty as the right to impose your religious views on those who do not hold those beliefs.

    Let’s be realistic here. The Little Sisters case was not about freedom to practice religion. No one is required to use birth control if they don’t want to. But the people who exploited the Little Sisters to front the case don’t want to stop with not using birth control. They want to provent everyone from using birth control and they want to use the power of the employer and the power of government to do so.

    And so-called conservatives are okay with that.

    1. Didn’t I see you on SCOTUSblog today?

    2. Well, you know, we conservatives don’t define religious liberty like Sidney r finkel, so it’s a win I suppose.

      In bizarro world where Sidney r finkel lives, I suppose a government mandate that you have to pay out of pocket for something that violates a sincere religious belief doesn’t violate religious freedom, or that the government can say who is and who isn’t a religious teacher doesn’t violate religious freedom.

      1. Every time you purchase a good or service in America you are paying for someone else’s health care costs. In America employer provided health insurance is a line item on a budget that is essentially a VAT.

        1. Yes, true, if you define abortion as health care that is. Related, I’m sure you’re upset that your tax dollars are going to all sorts of things you disagree with. That’s the problem with politics I suppose.

          Let me help you calm down a bit. You might want to look at this decision, though, kind of like the Hype Amendment.

          1. *Hyde Amendment

            Funny error that. It is mostly hype

    3. “They want to provent everyone from using birth control and they want to use the power of the employer and the power of government to do so.

      And so-called conservatives are okay with that.”

      Neither of those statements are even remotely correct

    4. Mr. Finkel I generally agree with your comments here. But this one is along the lines of what the conservative commenters tend to do here, ascribing dishonest and/or evil motives to those with whom they disagree.

      1. I wish I did not have to attribute these dishonest motives to these people but the record is replete with examples of how they would legislate and mandate behaviour with respect to sexual relations and family planning.

      2. Lol. Have you ever seen a sarcastro post? The left rolls around in dishonesty like a pig in shit.

    5. They want to provent everyone from using birth control

      That’s loopy. There’s no evidence whatsoever for such a claim.

  7. The idiot nuns at Our Lady of the Worthless Miracle aren’t providing anything out of the goodness of their shriveled up hearts. The reality is our health care system is funded by what is tantamount to a VAT controlled by state governments and the major employers in the respective states. So the notion the individual employers should get a say in how the VAT is spent is absurd in as much as they get a say in where a highway in the state is built. So an employee of Our Lady of the Worthless Miracle is free to use wages to procure an abortion…and health insurance that includes birth control should be viewed the same way as wages.

    1. Interesting analogy, though quite flawed. The 1st Amendment means we the People actually DO have a say where a highway is built. To put it in your terms, it says you can build a highway over there in that field… but not over through my church parking lot.

      1. Correct, everyone can lobby the government. The way health insurance works is that just like everything else the biggest employers have the most lobbying power…so the state government and the biggest employers in the state get the most say about health insurance in the state.

        Bottom line: employer provided health insurance = wages. Mary Catherine that works for Our Lady of the Worthless Miracle is free to use wages to get an abortion when she gets knocked up by Brad or Neal or Antonin.

        1. Your anger and condescension does your cause no good.

          I’d be the first to agree that health *insurance* is “compensation” in the economic sense. Medical inflation going up faster than non-medical inflation is mostly the reason you see that take home pay has been (mostly) stagnant.

          But you’re conflation of myriad issues here is a problem with your framing. At its heart, this was about gov’t mandates that money directly from an employer pay for abortion pills and birth control pills, something the nuns don’t support as Catholics, thus it was violation of the First Amendment. How we fund health care, as convoluted as it is, is at best, a red herring.

          1. Requiring employers to directly pay for insurance that covers birth control or abortion is not a violation of the First Amendment under Smith.

            1. Josh R, health care costs are a line item on a budget that can be passed along to the consumer. For religious organizations that don’t necessarily have consumers it is simply the “cost of doing business” because they have to pay competitive wages to attract employees. Health insurance = wages. Pay your employees and then they are free to use their wages however they like…health insurance should be treated the same way wages are treated from an employer’s perspective.

              1. Per Thomas v. Review Bd., it’s up to the religious objector to draw the line, and in this case they drew the line at providing insurance, not wages.

                1. They should not hire employees then. In America employees expect wages and health insurance and health insurance should be treated as wages because it is clearly in lieu of more salary. Employers aren’t doing anyone a favor by paying wages and offering health insurance—it’s the cost of doing business in America.

                  1. Your comment was not responsive to my argument.

                    1. Health insurance = wages

                    2. Still not responsive because that is your opinion, not the opinion of the religious objector. And per Thomas v. Review Bd, their opinion is the one that counts.

                    3. It’s common sense. Employers pay wages and benefits that are in lieu of wages because of tax preferences promoted by the UAW and New Deal Democrats.

                  2. That’s your solution…religious organizations have to do everything in house with members of the order? Well, that’s certainly against religious liberty.

                    p.s. lots of employees with lots of different employment contracts DON’T include insurance.

                    p.s.s. Insurance is *compensation* not wages.

                    1. Give me a break—these nuns know their lives have been meaningless and they regret not letting their freak flags fly and now they want others to be miserable just like them. Meanwhile Trump is making sure the gay men in America get to return to the 1970s and live it up!! It’s raining men hallelujah!!

          2. I don’t have a “cause” other than facts. We are taking about something easily accessible that is cheap…conservatives and these imbecile nuns are just causing trouble because their lives are meaningless and unfulfilling.

            1. I get your argument, but I wish you could make it without the vitriol toward Little Sisters of the Poor. I’m not religious, but I’ve had some interaction with them in Baltimore, and they are genuinely good and caring people.

              1. As long as Trump is president I will not be civil. Plus I was civil when I protested the Iraq War and I was called a traitor guilty of treason…and then those same nitwits voted for Trump who also opposed the Iraq War.

                1. Ha ha fair enough. I would never argue that Donald Trump is a good and caring person, though.

                  1. Trump supporters are crass and uncivil and say the most awful things. So early on when I was attempting civil discourse with Trump supporters I noticed it made no difference…but when I got uncivil it would at least get a little under their skin. So Trump supporters aren’t going to change their minds based on facts and objective analysis so I try to emulate them by being as crass as possible.

                    1. See what I mean here folks…the mask has come off the left.

                    2. Sebastian is not a lefty, m_k. His views are pretty idiosyncratic.

                  2. mad_kalak, I’m a Republican that donated time and money to Republicans through the 2016 election.

                2. and then those same nitwits voted for Trump who also opposed the Iraq War.

                  He didn’t. He just said that he did a decade after the fact.

                  1. I opposed the Iraq War in 2002/03 and I remember everything like it was yesterday. Trump’s position was the Democrats’ position—force is more than justified to remove Saddam but we should get UN approval and the coalition force should have regional legitimacy. So it was very similar to Clinton’s former Yugoslavia wars in which NATO supported our intervention which meant the coalition had regional legitimacy and other countries shared the burden. Bush did not build a robust coalition and the intervention didn’t have regional legitimacy.

            2. The problem with leftists is that they say that they ‘don’t have a “cause” other than facts’, but then they think their opinion that someone else’s “lives are meaningless and unfulfilling” is a fact.

              Fuck your opinions.

  8. So let me get this “expansion of religious liberty” straight. School administration decides to fire teacher for some normally illegal reason, like race.

    But if they just say the magic word “minister,” regardless of whether the teacher had any significant religious duties, they get away with it. Yeah. Wonderful.

    I’m wondering at what point the organization has to declare a position “ministerial?” Can they wait until the worker gets cancer, and suddenly announce it, or does there have to be some notice, maybe at the time of hiring?

    Market logic suggests that if you want to hire someone and deny them the usual anti-discrimination protections you would have to pay a premium wage. Seems kind of unfair for the potential new hire not know the situation.

    1. So, it would be a problem for you if I did a phone interview for a staff accountant position with the Nation of Islam, but when I walked in on the first day I was fired for being white.

      Damn.

      Seriously though, how often is raced based firing of employees of religious organizations going to happen?

      1. how often is raced based firing of employees of religious organizations going to happen?

        I don’t know. Maybe not often, but so what? I imagine disability or age-based firings might happen somewhat more frequently – indeed these were the allegations in the cases at issue.

        And that’s worse, isn’t it? I mean, you can go get another accounting job when NOI tells you to get out, but it’s not so easy when you’re 60, or have just become disabled, even if your disability doesn’t really stop you from working.

        And change your scenario a bit. A Catholic school hires a Jewish science teacher. All is (more or less) open and aboveboard. The school is aware of the teacher’s religion, and the job involves no religious instruction. A few years later the new bishop decides that all teachers should be regarded as ministers – maybe they should lead a daily prayer. Presto. Teacher’s gone. Ministerial exemption. Tough luck. Note that Gorsuch and Thomas are willing to simply take the organization’s word that a job is ministerial, with no additional standard at all.

        As I suggested, I could buy this decision if there were ground rules about informing employees, not changing job duties ex post facto, etc.

        1. Your Jewish teacher should be appreciative of the fact that the Catholic school hired him and gave him a job in the first place.

          Why the hostility towards freedom of association and freedom of religion? Those values are far more vital to a free and civilized society than anti-discrimination concerns.

        2. Title VII permits religious organizations to discriminate on the basis of religion. A Catholic school can refuse to hire a Jewish janitor.

          1. Did either of you read my comment?

            Your Jewish teacher should be appreciative of the fact that the Catholic school hired him and gave him a job in the first place.

            And then fired her? She should bow down in gratitude? You’re a moron.

            Title VII permits religious organizations to discriminate on the basis of religion. A Catholic school can refuse to hire a Jewish janitor.

            That’s not the issue I raised.

            1. A few years later the new bishop decides that all teachers should be regarded as ministers – maybe they should lead a daily prayer. Presto. Teacher’s gone. Ministerial exemption. Tough luck

              They could fire the science teacher at any time because he is Jewish. They don’t need the ministerial exemption.

              1. Yeah. Not only can they fire him, but they can see to it he doesn’t collect unemployment too. Because requiring a religious institution to pay into a state unemployment fund is also discrimination against religion.

        3. Bernard,

          The short answer is, that would be changing job duties. And dramatically changing job duties on someone, then firing them because they can’t meet the duties, would be tend to illegal (or break union contracts).

    2. The teachers were not labeled ministers. They were deemed ministers by the Court because they performed vital religious duties.

      1. Catholic elementary school teachers are considered Catechists – a ministerial title – based on their job duties. Precedent requires the result, and the dissent is ridiculous. The hypothetical of a Jewish science teacher is inapposite – no way to consider a high school teacher with no religious instruction responsibilities a minister regardless of title. If you want to be able to sue your employer, don’t take a job with a religious institution that involves actively propagating the faith – that makes you a minister, regardless of title.

        1. Another moron. Can you read?

          In my hypothetical the teacher is suddenly, after a few years, required to do some minimal religious work, even though that was explicitly not part of the job when she was hired, and then fired because you don’t want a non-Catholic leading Catholic prayers or whatever.

          Please read again and try to understand.

          1. I confess to not reading your hypothetical. I’m lazy and impulsive, not stupid. I can easily overcome my flaws with the judicious application of effort, and I always apologize and attempt to correct my behavior when appropriately called out for it. I should not have referenced your hypothetical given my superficial reading. I regret my initial Trumpish behavior, and beg your forgiveness. If I find anything in your post that merits a response (good or otherwise), I’ll reply in the appropriate place.

          2. I don’t understand why you think this is outrageous. It is a rather routine aspect of our society/economy that the nature of a job changes, such that someone who was formerly qualified for a particular position no longer is and he/she gets let go.

            (As an employment lawyer, I do frequently encounter people who think, “He asked me to do such-and-such, but I told him that I wouldn’t because it wasn’t my job, and then I got fired. I want to sue.”)

          3. Bernard,

            I think this would be considered illegal. Let’s take a different example.

            You’ve got a Nurse-practitioner at a hospital. The hospital then changes her job duties to neurosurgeon. The hospital then fires the NP-neurosurgeon because she didn’t meet the qualifications to be a neurosurgeon.

            This would tend to be illegal. Changing someone’s job duties, then immediately firing them because they can’t meet the duties is not right.

            (Note, this is very different from firing someone from an at-will contract, but that is a much different conversation that doesn’t really apply here)

            1. This would tend to be illegal. Changing someone’s job duties, then immediately firing them because they can’t meet the duties is not right.

              Armchair law school strikes again!

              To quote a very wise person: “As an employment lawyer, I do frequently encounter people who think, ‘He asked me to do such-and-such, but I told him that I wouldn’t because it wasn’t my job, and then I got fired. I want to sue.'”

              No, it would not “tend to be illegal.” It is not actually “very different” from firing someone from an at-will contract. It’s actually very much exactly the same thing.

              The vast majority of employees in the U.S. are at will. That means that they can be fired because their job changed and they couldn’t do the new one, because the boss doesn’t like the tie they were wearing, because the boss decided to fire someone because he’s sadistic and drew lots to pick who to fire, or any reason or whim other than the employee’s membership in a protected class.

              The only people who could not be fired under the hypothetical described are civil servants, members of unions, and those who have a personal employment contract that alters their at will status.

              1. If it isn’t our favorite supposed lawyer making another in a series of errors on the English language. In today’s example, the words “can’t” and “won’t” are transposed, incorrectly.

                Under the above example, the NP could be fired if she wasn’t needed anymore (assuming an at-will contract). Or if needs had changed, she could be let go, and a neurosurgeon hired.

                But in the example, her job role was shifted specifically to a job that she could not (not “would not”, but “could not”) do, due to lacking a set of qualifications the employer was well aware of. And then she was fired because she could not do the job that she was moved into. That would appear to be a fraudulent reason for the firing on the part of the employer. (IE, why would the employer move the employee into a position that the employer knew the employee couldn’t do?)

                The courts will look on such fraudulent reasoning poorly, and immediately seek the real reason the employee was fired. And there are several reasons that are illegal for even an at-will employee to be fired.

                1. The courts will look on such fraudulent reasoning poorly, and immediately seek the real reason the employee was fired.

                  It’s like you saw an episode of Ally McBeal once.

    3. You might want to read the opinion before making your comments. Multiple pages of majority and the dissent discussing that it is an examination of the activities of the employee rather than a title that determines the exception.

      1. You might want to read the opinion before making your comments.

        You obviously have no respect for his traditions.

    4. So let me get this “expansion of religious liberty” straight. School administration decides to fire teacher for some normally illegal reason, like race.

      But if they just say the magic word “minister,” regardless of whether the teacher had any significant religious duties, they get away with it. Yeah. Wonderful.

      You don’t have it straight at all. The court explained explicitly that titles do not determine the applicability of the ministerial exception. It’s not a magic word, and the significant religious duties do matter.

    5. So let me get this “expansion of religious liberty” straight.

      We tried to let you do that, but you failed miserably.

  9. I was thinking about replying to the substance of this comment, but I don’t understand what it means. The tone of the comment does seem to verge on being a bit uncivil. Maybe that’s just the agnostic in me not being able to come to a conclusion about the accuracy of religious beliefs.

  10. Proofreader:

    “Justice Thomas wrote for hte Court”

    Should probably be: Justice Thomas wrote for the Court

    /Proofreader.

  11. I love how everyone in Little Sisters of the Poor pretends that that “moral exemption” is a real thing that exists, that people would actually be able to rely on. Just more gifts for Christians, must be a day that ends in Y.

    1. All of this is so dumb. The Mormons resisted implementing the Obamacare Medicaid expansion but then they realized that 20 year old Mormons were major beneficiaries of maternity being an EHB under Obamacare. A liberal nitwit at the NYTimes even helped Mormons get Medicaid even while the Mormon church had figured out a way to cover maternity for its members. So now gay dudes in San Francisco are paying for 20 year old Mormons maternity costs through the federal income tax.

    2. Ever notice how, despite not even being in this country, you are always ready to “explain” how some religious thing is “really” about Christians rather than religion in general?

      1. I know, I shouldn’t procrastinate so much.

  12. The birth control decision – both the Thomas opinion for the Court and Justice Kagan’s concurrence – place the blame for the situation where it belongs: with the cowardly and lazy Congress. Congress couldn’t pass a birth control mandate, but they figured the Obama DHHS would include it in the implementing regulations, so they left it to them with unfettered discretion as to what was included. But what Obama giveth, Trump taketh away. Next round, on remand, is between the concurring opinions. Two more years of uncertainty, thanks to deliberate fudging by a Democratic House majority. Watch for a similar result tomorrow, when Kagan writes the opinion quashing the House subpoena because they refused to admit an incontrovertibly legitimate purpose (impeachment inquiry) and fudged with an unspecified legislative purpose, which the Court will decline to provide, leaving only the reasonable inference of a political fishing expedition. Of course, the New York DA will win his case (Alito dissenting), giving the Chief Justice the opportunity to write a masterpiece of political philosophy that leaves us all saying, “Anthony who?”

    1. Republicans have behaved so irresponsibly with respect to Obamacare that I don’t think Democrats could have predicted in 2020 Republicans would still be going for moral victories in the courts regarding meaningless provisions in the law. The fact Texas and Florida still haven’t implemented the Obamacare Medicaid expansion makes this case pale in comparison with respect to how many people are impacted. I tell Texans that if they get sick they should jog through River Oaks or Highland Park and pray to Jesus that a tree falls and paralyzes them for life so you can get on the Governor Abbott health care plan. 😉

  13. It’s nice to see both of these were 7-2 decisions. Politicize things as much as you want, most often the law is not so unclear.

    1. Kagan’s concurrence hints at a 5-4 split if the case gets back to the Court (assuming Trump is still president and the current exemption remains in place).

  14. I’m a little conflicted over the civil rights case though. I think it’s very important religious institutions maintain control over being able to decide who teaches for them, but why are religious institutions so excited over being able to discriminate against old people?

    1. Exactly.

      Old people, disabled people, etc.

      Why provide this “ministerial” fig leaf to cover outright discrimination?

      1. So you can do something about it when Pope Biden decides he’s Napoleon?

      2. Must be the government thinks that any institution that qualifies for this exemption would be trusted to not discriminate, and does not need the law to enforce morality. haha.

      3. Because there’s a first amendment that prohibits laws that inhibit the freedom of religion….

        As to your wider point and why.

        Because religion should be allowed to choose its own religious leaders, free from government interference. And if government is interfering, it can easily affect religious freedom. Let’s give you a case example.

        Let’s say the state of Kentucky doesn’t like Islam. And there’s no ministerial exemption. So, they go after the Mosques in the state. They find that there is clear, gender based discrimination that flat out doesn’t allow women to become imans. The state says, “you either let women be imans, or there will be enough in fines to drive you out of the state.”

        So, now the leaders of Islam in the State of Kentucky have two options. Leave the state, or alter their religion and religious beliefs to account for state laws.

        Is that right?

  15. A big win for male, celibate bishops.

    Not a big win for their congregation, who overwhelmingly use and support the use of contraceptives.

    1. Obamacare mandates maternity coverage and conservatives don’t like that either. You lazy 22 year olds should have $10k in the bank to pay the obstetrician or else you shouldn’t have a baby!!

      1. I especially don’t like that they mandate it for men.

        1. Looks like we’re going to have to have “the talk”. You see when a man loves a woman he puts his…

    2. And a big win for celibates everywhere (as many of the comments here attest).

  16. “Justice Thomas wrote for hte Court…”

    Is that a Freudian slip for “h(a)te court”?

    1. I missed that one, but found several others…

  17. Justice [which?] wrote a concurring opinion joined by Justice Gorsuch.

  18. Spellcheck is your friend….

  19. Perhaps more significantly for administrative law, the Court held that the Third Circuit was wrong to demand evidence that the agency “maintained an open mind” during the rulemaking process. The APA contains no such requirement, Justice Thomas explained, and courts have no lawful basis to impose one. Instead, a reviewing court should stick to evaluating whether the agency complied with the “objective criteria” specified in the APA. This is a significant holding.

    As to the, “open mind,” issue and the APA. Maybe, “open mind,” is not the right criterion, but some criterion to serve a similar purpose must be found.

    The problem is that the required process for receiving public comments becomes farcical when it is only pro-forma. For instance, in cases of environmental review, on issues where environmental impact statements are legally required, government agencies are free to simply lie in draft environmental statements, and they do.

    Some agencies, such as the FAA, do so as a matter of routine. When comments arrive which point out unsupportable, highly substantive errors—such as theoretical noise predictions contradicted by the FAA’s own systematic long-term noise measurements—those comments get treated pro-forma, almost always without any attempt at specific response or rebuttal. The comment is noted, and the agency moves ahead relying upon the fraudulent draft.

    Subsequent criticisms are ignored. The agency claims all legal requirements have been satisfied, and goes ahead and does what it wanted to do—phony environmental analysis in place, and legally blessed.

    That kind of practice is widespread among federal agencies, wherever environmental review is mandatory, and it has largely rendered the practice of environmental analysis pointless. It would be one thing to say an agency is required to heed environmental criticism, and reply to it substantively. Doing that would at least introduce the possibility of political embarrassment, if a corrected environmental document showed grave environmental damage from a project which nevertheless got a green light. That is probably all that could be expected from the environmental review process as presently mandated. But even that small public protection seems to be struck down by the quote above. A significant holding indeed.

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