The Supreme Court Has Not Necessarily Weaponized ‘Religious Liberty’
By: Alex
Tags: Civil Liberrties, Religious Liberty, Supreme Court, Religion, Civil Rights

Essay | Law | Ministerial Exception

Author’s note: the footnotes are live hyperlinks. Click the note number to go to the authority.

In the Medium publication I Taught The Law, Sam Marcosson argues in Just Look Who’s Demanding “Special Rights” Now that the Supreme Court “has given special rights to religious entities to be exempted from generally applicable laws.”

[To] allow some citizens to use their religious beliefs to deprive others of the protection of secular laws, including the Affordable Care Act and antidiscrimination laws, effectively turns the Free Exercise Clause into a weapon of intolerance.

In Can ‘The Church’ Improve Relations with LGBT+ People While Staying Faithful to Scripture, one wrote, in respect of equal civil rights for LGBT+ people, that there is still

one area in which major strides are yet to be made, the defeat of nonsecular intolerance of and active discrimination against LGBT+ people in the name of “religious liberty.” … Religious liberty is the banner under which, and the First Amendment the sword with which the conservative Christian-Right storms forward. … In the name of “religious liberty,” the conservative Christian-Right would have their prejudices ensconced in secular law. What balance the Supreme Court will strike between the religious liberty interests of the Christian-Right and the interests of LGBT+ people in equal civil rights and protections under secular law remains to be seen.

In his article, Mr. Marcosson addresses the balance he believes the Court has struck in two recent cases with respect to secular civil rights generally. He concludes that the Court has carved out a “massive expansion of religious freedom at the expense of” secular civil liberties.

With the decisions in

the Court would appear at first blush to have handed the conservative Christian-Right significant victories as Mr. Marcosson maintains.

However, it is not so plain as that.

Little Sisters is not a religious liberties case at all

In Little Sisters, the Court took a statute at its word. In the ACA, Congress gave the Executive broad discretion to carve exceptions to the Preventive Care Guidelines. The Trump administration exercised that discretion in favor of the Christian-Right by excepting contraceptive care from the Guidelines for businesses claiming religious objections to providing contraceptives. The Court allowed the Administration to do as it did because the statute, on its face, allowed it.

To the argument that the Administration’s rules thwarted congressional intent, the Court stated that it would not supplant the plain text of the statute with its interpretation of congressional intent. The Court applied the rule of ‘strict textualism’ (‘plain meaning rule’) requiring that the Court not go behind the plain text of the statute looking for alternative interpretations.

Little Sisters is not a ‘religious liberties’ case at all. It is a strict textual interpretation case involving the application of a centuries-old doctrine of statutory interpretation. It just happens to involve religion because the Trump Administration chose to exercise its rule-writing discretion in favor of the Christian-Right. Another administration might have exercised its discretion in another way.

Little Sisters is not at all a massive expansion of religious liberties at the expense of other, secular civil rights.

Our Lady of Guadalupe is not necessarily such a massive expansion of religious liberties as supposed

In Our Lady of Guadalupe, the Court applied the near half-century-old ‘ministerial exception’ doctrine

barring the application of anti-discrimination laws to religious institutions’ employment relationships with its “ministers.” … [T]he exception is drawn from the First Amendment, and seeks to both (1) safeguard religious groups’ “freedom . . . to select their own ministers,” … and (2) prevent “government involvement in [] ecclesiastical decisions.” … When applied, the exception operates to give religious institutions an affirmative defense when sued for discrimination by employees who qualify as “ministers.”… However, exactly which types of employees should qualify as a “ministers,” and thus how broadly the exception should apply, is the subject of current litigation before the Supreme Court.³ (footnotes omitted)

How broadly to construe the exception, that is how liberally to interpret ‘ministerial’ or ‘ecclesiastical’ duties, was the crux of Our Lady of Guadalupe.

In that case, two lay teachers at Catholic schools sued the schools alleging age- and disability-discrimination. The Court found that their duties were sufficiently ‘ministerial’ to invoke the ministerial exception.

Both were employed under nearly identical agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases. Each was also required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, worshipped [sic] with her students, prayed with her students, and had her performance measured on religious bases.⁴ (Slip Opinion, syllabus pp. 1–2)

Under Our Lady of Guadalupe, the ministerial exception forecloses such an employee from bringing discrimination-in-employment claims. The exception is broad enough to encompass teachers at religious institutions whose duties are substantially and broadly connected to the institutions’ religious purposes.

However, the ministerial exception

does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles. Id. (Opinion of the Court, pp. 10–11)

The religious institution’s

definition and explanation of [the employees’] roles is important. … [The] institution’s explanation of the role of such employees in the life of the religion in question is important. Ibid. p. 21.

But, courts are

to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception. Ibid. p. 22 (footnote omitted).

It has been argued that

if the church believes an employee fits this role, courts must defer to its determination. … The upshot of this new constitutional rule is that religious employers now have carte blanche to discriminate against workers. After all, if anyone sues, their employer can simply deem them “ministerial” under [the Court’s] deferential test, thwarting litigation.⁵

Indeed, that is the position that Mr. Marcosson takes — “A religious school can discriminate in employment … if the positions involved have even the slightest religious duties.”

However, we have seen from the Court’s language that that is not the case. Courts are not required to take the institution’s word for it that the employee’s role is ministerial. The institution’s explanation of the employee’s role is “important” but not determinative. Instead, courts must “take all relevant circumstances into account” on a case-by-case basis.

Our Lady of Guadalupe may have relaxed the strictures on what duties suffice to meet the ministerial exception and may have broadened the class of employees foreclosed by the exception from bringing discrimination claims. However, it did not necessarily carve out the massive expansion of religious freedom at the expense of secular civil rights as Mr. Marcosson would have.⁶

It remains to future lower courts, interpreting and applying Our Lady of Guadalupe, to determine case-by-case how broad the ministerial exception is. Furthermore, of course, it remains ultimately to future Supreme Courts to refine the doctrine.

In its war against secular civil liberties in the name of religious liberty, the Christian-Right has not necessarily won a massive victory

There is in one’s mind no doubt that, in the guise of ‘religious liberty,’ the conservative Christian-Right is at war with countervailing secular civil liberties. This is especially apparent in the case of LGBT+ people. In the name of religious liberty, the Christian-Right would

enshrine in secular law their ‘religious right’ to discriminate [against LGBT+ people] not just at the doors to their homes and churches but rather also at the doors to their hotels, fast food chains, home-improvement stores, and business offices.⁶

In Our Lady of Guadalupe, the Court affirmed that, within the bounds of the ministerial exception, they are free to discriminate at the doors to their churches. But, that is not necessarily the “massive expansion” of religious liberty interests that Mr. Marcosson would have it be.

Nor in Little Sisters, does one see such. It is not an expansion of religious liberty, but rather a case of textual statutory interpretation. It touches on religious discrimination only because the Trump administration exercised its discretion to except contraceptive care from the ACA Preventive Care Guidelines. The Little Sisters Court let that determination stand because it was within the bounds of discretion that Congress gave the Executive in the ACA.

In this light, one cannot conclude that the Court has massively expanded the Christian-Right’s religious liberty interests over secular civil liberties. At most, the Court may have enlarged the breadth of the ministerial exception, but it remains for future courts to determine that on a case-by-case basis.