Bench Memos

Law & the Courts

Two Big Victories for Religious Liberty

In two separate rulings today, the Supreme Court delivered important victories for religious liberty, one, alas, much less definitive than the other.

1. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court ruled by a vote of 7 to 2 that the First Amendment’s Religion Clauses—and the so-called “ministerial exception” that flows from them—bar the courts from adjudicating employment-discrimination claims by two elementary school teachers at Catholic schools. Justice Alito wrote the majority opinion. Six other justices joined his opinion: the Chief Justice, Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh. Justice Sotomayor, joined by Justice Ginsburg, dissented.

The Court’s ruling builds on its Hosanna-Tabor ruling eight years ago. Here are two key excerpts:

Although these teachers were not given the title of “minister” and have less religious training than [Cheryl] Perich [the teacher in Hosanna-Tabor], 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.

What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.

2. In Little Sisters of the Poor v. Pennsylvania, the Court ruled by the same 7-2 alignment that the Trump administration had authority under the ACA to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. Justice Thomas wrote the majority opinion for five justices: himself, the Chief, Alito, Gorsuch, and Kavanaugh. Justice Kagan, joined by Justice Breyer, concurred in the judgment only. Justice Ginsburg, joined by Justice Sotomayor, dissented.

This victory for the Little Sisters does not bring an end to the litigation. As Alito observes in his concurring opinion (joined by Gorsuch), the losing states on remand “are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA.” Alito sets forth his view that the Religious Freedom Restoration Act “compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”

By contrast, Kagan in her opinion concurring in the judgment “question[s] whether [on remand] the exemptions can survive administrative law’s demand for reasoned decisionmaking.”


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