By Ed Mechmann
After several crushing decisions by the Supreme Court this term, we can now celebrate two important religious liberty victories. The first protects the ability of religious organizations to make employment decisions that are in keeping with their faith-based mission. The second closes yet another chapter in the never-ending saga of the HHS Mandate and its least likely victim, the Little Sisters of the Poor.
These are very significant decisions. But each of them has to be taken with a sense of realism and some important reservations. Let me explain.
The Religious Ministers Case
In the past, the Supreme Court has consistently recognized that freedom of religious requires that the government not interfere with the selection of ministers. This makes perfect sense. No church can be truly free if they can’t decide who will be teach and convey their faith. This has come to be known as the “ministerial exception”. It was upheld a few years ago unanimously in the case of Hosanna Tabor v. EEOC. In practical terms, it grants religious organizations immunity against anti-discrimination lawsuits when they make employment decisions for positions with important religious functions.
The decision came in two cases (Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel) from California. In both cases, a Catholic school decided not to renew a teacher’s contract. The schools were sued by the teachers, claiming discrimination on the basis of age and disability. The schools defended themselves by invoking the “ministerial exception”. They argued that the teachers served a vital function in conveying the Catholic faith, and thus qualified as “ministers” under the rule.
The Supreme Court upheld the schools’ defense, and made a significant clarification to the “ministerial exception”. The Court great weight to how the religious organization sees the position and the actual work done by the person. Justice Alito, writing for a 7-justice majority, said,
What matters is what an employee does… [E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission…. [N]ot only were [the teachers] obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith…. [B]oth their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important.
This is a very significant victory for religious liberty. It is absolutely essential that religious institutions are able to hire and retain employees based on their mission. No institution can maintain its integrity without that.
However, I have to add a significant reservation. The dissenting justices raise a valid point when they point to the breadth of the Court’s decision. As Justice Sotomayor wrote, “It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their “ministers,” even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.”
This is a serious warning to religious organizations that we cannot abuse the “ministerial exception” as a pretext for invidious discrimination. Such an act would be a serious violation of our Catholic faith in the dignity of every human person and their right to be treated with justice and charity.
The Little Sisters of the Poor Saga
The other decision involves the latest case in the interminable litigation over what has long been called the “HHS Mandate”. That refers to regulations implementing the Affordable Care Act, which required employers to provide free health insurance coverage for contraceptives (some of which may cause early abortions) and sterilization.
Convoluted legal battles over religious exemptions to this rule have been going on since 2010. Cases have been up to the Supreme Court several times without the issue being definitively resolved. The most famous religious organization that has been fighting for their rights has been the Little Sisters of the Poor.
In this latest decision, the Court upheld the conscience protection regulations issued by the Trump Administration, granting a wide conscience exemption from the HHS Mandate. That exemption is available not just to religious organizations, but others with moral objections to the mandate. That’s the good news. But although this concludes the current chapter of the litigation, it doesn’t put a definitive end to the whole saga. The Court’s decision was entirely on procedural grounds (whether the agency had the authority to issue the regulations and did they conform to the technical requirements of the Administrative Procedures Act).
So the case will go back down to the District Courts for further litigation on the substance of the regulations. Next the fight will be over whether the exemption is “arbitrary and capricious” or is required by the Religious Freedom Restoration Act. A preview of this argument can be seen in the concurring opinions by Justice Alito and Justice Kagan and the dissent by Justice Ginsburg.
It should also be noted that although this decision will be reported as being by a wide majority (7 to 2), in reality only five justices appear likely to uphold the regulations on the merits. So it was a lot closer case than it appears at first blush. Also, if a new Administration comes in after the election, these regulations will certainly be revoked, the old narrow exemption will return, and the whole battle will start over again.
So it’s a victory for now, and we should be happy with it. But the ultimate issue (the merits of the conscience objection to the mandate) remains unresolved.
The ultimate lesson of these decisions (and those that came before during this term) is that the battle for religious liberty and to defend human life is not going to end any time soon. All the time you can read hopeful headlines about Roe v. Wade being overturned or some great victory for religious freedom. The reality is that there are no final victories, only unremitting battle. That may sound discouraging or disheartening, but it’s the truth. And it’s the ultimate reason that we have to remain fixed in purpose and untiring in resolve.
Let’s remember that this is all part of a larger battle. As St. Paul instructed us:
Finally, be strong in the Lord and in the strength of his might. Put on the whole armor of God, that you may be able to stand against the wiles of the devil. For we are not contending against flesh and blood, but against the principalities, against the powers, against the world rulers of this present darkness, against the spiritual hosts of wickedness in the heavenly places.(Eph. 6:10-12)