Bench Memos

Law & the Courts

‘Secularist Bigot Launches Ignorant Attack on Religious Liberty’?

The mock title of this post is aggressively tendentious, but no less so than the inflammatory title of Linda Greenhouse’s online column today, “Religious Crusaders at the Supreme Court’s Gates.”

Greenhouse’s column has some interesting discussion of one case already on the Supreme Court’s docket and of several others on which the Court might grant review. But it is marred by some surprising errors and distortions (beyond her trivial error in stating that the 1990 ruling in Employment Division v. Smith is a “19-year-old decision”).

1. Of Espinoza v. Montana Department of Revenue, the case already on the Court’s docket, Greenhouse states:

The new case, to be argued in December, presents this question: “Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?”

It’s an interesting question, but an odd one in the context of this case, Espinoza v. Montana Department of Revenue, brought to the court by the Institute for Justice, a libertarian litigating group that has been a leader in the school choice movement. The reason the question is odd is that if the answer is yes, the logical consequence is that a state that once had a program offering financial support to religious and nonreligious schools alike (in this case, in the form of a tax credit to tuition-paying parents) and that subsequently shut down the program entirely can be deemed to have violated a principle of religious neutrality. [Emphasis added.]

I can’t make heads or tails of Greenhouse’s assertion that the “logical consequence” of a “yes” answer is that the state couldn’t shut down the program entirely. Why would that be so? Why wouldn’t the logical consequence simply be that the state could choose not to have such a program but that, if it has a program, the program must include the choice of attending religious schools?

As Greenhouse discusses, the case builds on the Court’s 2017 ruling in Trinity Lutheran Church v. Comer, which held (by a 7-2 vote) that the state of Missouri violated the Free Exercise rights of a church by excluding it from a grant program for resurfacing playgrounds. I’m not aware that anyone has ever argued that the Court’s ruling means that Missouri can’t shut down that grant program, nor do I see how such an argument would make any sense. So Greenhouse’s “logical consequence” strikes me as simply illogical.

(To be sure, the immediate result of a Supreme Court decision reversing the Montana supreme court ought to be to have the program go into effect, but that says nothing about the legislature’s authority to “subsequently shut down the program entirely.”)

2. Greenhouse also suggests that it’s somehow unusual that the Court granted review in Espinoza:

The Montana Supreme Court found the tax-credit program, in its entirety, to violate the state Constitution’s “stringent prohibition on aid to sectarian schools.” The state court didn’t address the federal Constitution. Usually, the justices view a state court decision that relies on “independent and adequate state grounds” as inappropriate for Supreme Court review.

But this is confused. The state court did “address the federal Constitution,” as it ruled that the program’s exclusion of religious schools did not violate the Free Exercise Clause of the federal Constitution: “Although there may be a case where an indirect payment constitutes ‘aid’ under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases.”

Further, Espinoza’s claim is that the state constitutional provision, as authoritatively interpreted by the Montana supreme court, violates her rights under the federal Constitution. The doctrine of “independent and adequate state grounds” has never been a barrier to the Court’s review of such a claim. (That doctrine means that the Court won’t review, say, a state court holding that a law violates the Second Amendment if the state court also ruled that the law violated a state constitutional provision whose meaning isn’t dependent on the Court’s interpretation of the Second Amendment, but it in no way immunizes a state court ruling from being challenged as a violation of the federal Constitution.)

3. Addressing cases testing the boundaries of the ministerial exemption recognized by a unanimous Supreme Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), Greenhouse asks how that ruling applies to “ordinary teachers whom no one would regard as quasi-ministers.” But that phrasing is question-begging.

The term minister for purposes of the ministerial exemption is at this point an ill-defined term of art. The Chief Justice’s majority opinion in Hosanna-Tabor declined to undertake to define the bounds of the term. In his concurring opinion, Justice Alito, joined by Justice Kagan, explained that while the term minister “is commonly used” by Protestant denominations to refer to members of their clergy, “the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.” The focus should be “on the function performed by persons who work for religious bodies,” including “the critical process of communicating the faith,” not on the concept of ordination.

Greenhouse states that the teacher in one of the cases, Agnes Morrissey-Berru, “did not have any particular religious credentials, training or title.” But the Becket Fund’s certiorari petition presents a much fuller picture of her role in “the critical process of communicating the faith”:

[I]t was undisputed that [Morrissey-Berru] had “significant religious responsibilities as a teacher” at Our Lady of Guadalupe School. She taught daily religion classes covering core Catholic doctrine, the sacraments, and how to read the Bible; she led daily and spontaneous prayers with and for her students; she planned and participated with her students in liturgies and Easter celebrations; and she served as a model of Catholic faith and worship both in her life and in all of the other academic subjects she taught.

4. Greenhouse contends that “ today … claims for conscience-based carve-outs from legal requirements are rampant and are being granted by the courts with little regard for the harm these exemptions cause to third parties—for example, to employees who don’t share their bosses’ objections to birth control, as in the Hobby Lobby case five years ago.”

Greenhouse offers no evidence that such claims have become “rampant,” and I’m not aware of any. On the contrary, according to the empirical analysis reported in this 2018 law-review article, the data “does not indicate a trend of dramatic growth in the volume of religious cases post Hobby Lobby,” and “Hobby Lobby does not appear to have significantly changed the government’s win rate.” (The article, I’ll note, is written by scholars affiliated with the Becket Fund.)

As for “little regard” for harm to third parties: The federal Religious Freedom Restoration Act and its state analogues strike a balance between harm to the religious-liberty interests of plaintiffs and harm to third parties by allowing burdens on religious liberty if the government demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. If Greenhouse doesn’t think that the legislation has struck the proper balance, her objection ought to be to the legislation, not to the courts’ application of it. But acknowledging that would complicate her apparent embrace of the proposition, from Justice Scalia’s majority opinion in Employment Division v. Smith, that accommodation of religious practices should be left “to the political process.”


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