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Volokh Conspiracy

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.


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.