U.S. Supreme Court

Chemerinsky: Religion comes to the Supreme Court

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Erwin Chemerinsky. Photo by Jim Block.

Among the many divisive questions on the high court's docket this term, there are four different matters concerning religious freedom. Some involve constitutional issues, while others involve interpretation of federal statutes. All involve issues concerning free exercise of religion and are likely to be a strong indication of the direction of the Roberts Court as to religious liberties.

Espinoza v. Montana Department of Revenue

In 2015, the Montana legislature established a program that provides a dollar-for-dollar tax credit of up to $150 for individuals and businesses who donate to private scholarship organizations. Private schools in Montana are overwhelmingly religious. The Montana Supreme Court found that this program violated the Montana Constitution, which prohibits direct or indirect state aid to religion.

The Supreme Court granted review on the question of “[w]hether it violates the religion clauses or the 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.”

The case was argued on January 22. The challengers, joined by the Trump administration, contend that it violates the First Amendment for the state to prohibit the use of scholarship money for religious schools. They argue that barring scholarship funds from being used for religious schools “in otherwise generally available student-aid programs rejects … neutrality and shows inherent hostility toward religion.”

They also say that state constitutional provisions which prohibit the use of government funds to aid religion “raise serious” federal constitutional concerns. Many of these provisions, often referred to as “Blaine Amendments,” were adopted in the 19th century to restrict funding for Catholic schools.

On the other hand, the State of Montana argues that the Montana Supreme Court invalidated the program as violating the state constitution. There is thus no longer a Montana program to challenge as violating the First Amendment. The State contends that a state may limit its aid to religious institutions. Also, at the oral argument, the liberal justices pushed hard on the question of whether any of the plaintiffs had standing to sue.

In 2017, in Trinity Lutheran Church v. Comer, the Supreme Court held that Missouri violated free exercise of religion when it provided aid for surfacing playgrounds to private secular schools, but not to religious schools. In footnote 3, Chief Justice John G. Roberts Jr. made clear that the decision was just about aid for playgrounds. The underlying issue in Espinoza, which the court may not reach, is whether the government must provide aid to religious institutions whenever it is provided to private secular ones.

Tanzin v. Tanvir

This case, which will be argued on March 24, poses the question of whether the Religious Freedom Restoration Act (RFRA) of 1993 permits suits for money damages against individual federal employees.

The plaintiffs, Muslim men who are United States citizens or lawful permanent residents, filed a lawsuit claiming that they were placed on the “no fly” list after they refused, based at least in part on their religious beliefs, to provide information about other Muslims to the FBI in terrorism-related investigations. The suit, filed pursuant to the Religious Freedom Restoration Act, is against FBI agents, claiming that the plaintiffs were retaliated against based on their religion. The plaintiffs seek money damages.

RFRA allows litigants to “obtain appropriate relief against a government.” The United States government, in its brief, maintains that this does not allow suits for money damages against individual federal officers. The United States says that “Congress did not intend to impose personal liability on individual federal officials through a novel damages remedy in RFRA” and that “[d]amages awards against federal officials in their personal capacities are not appropriate relief unless Congress clearly indicates that they are.”

But the plaintiffs contend that “appropriate relief” includes money damages and that the authorization for suits against the government includes relief against government officers. The plaintiffs analogize RFRA to 42 U.S.C. §1983, which allows suits against government officers for money damages.

Our Lady of Guadalupe School v. Morrissey Beru and St. James School v. Biel

In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2011), the court unanimously held that a fifth-grade teacher in a parochial school who had been ordained as a minister could not sue the school for violating the Americans with Disabilities Act. The court ruled that a religion could not be held liable for the choices it makes as to who will be its ministers.

These two new cases, which have been consolidated for oral argument on April 1, pose the question of whether the 2011 ruling extends beyond ministers and to those who religious institutions see as carrying out important religious functions. Specifically, the question presented is “[w]hether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions.”

These cases involve Catholic school teachers in Catholic schools who brought employment discrimination claims against the schools. Neither teacher was designated as a “minister.” But the schools contend that “both of the Catholic schoolteachers here exercised important religious functions of worship, ritual, and expression.”

But the teachers argue that they were not clergy, were not required to be Catholic, did not lead religious observances, and taught secular subjects. In its opposition to certiorari, they asked, “does a teacher’s incorporation of religion into some aspects of the curriculum automatically render that teacher a “minister” for purposes of the ministerial exception”?

The underlying issue is how far the court will go in giving religious schools, and more generally religious institutions, an exemption from laws prohibiting employment discrimination.

Little Sisters of the Poor Saint Peters and Paul Home v. Pennsylvania and Trump v. Pennsylvania

These cases, which will be argued on April 29, bring the contraceptive mandate under the Patient Protection and Affordable Care Act back to the Supreme Court.

The Act requires employers provide health insurance that includes contraceptive coverage for their female employees. Under federal regulations, religious institutions were exempted from having to do this. Non-profit institutions affiliated with religions could opt out and insurance carriers then would provide coverage. But other employers had to provide this coverage. In Hobby Lobby v. Burwell (2014), the court held that it violated the Religious Freedom Restoration Act to require that a close corporation provide contraceptive coverage if it violates its owners religious beliefs.

In 2016, the court heard oral arguments as to whether the opt-out for non-profits affiliate with religious institutions violated RFRA by making them complicit in the provision of contraceptives that violated their religious beliefs. The court did not decide the issue, likely because it was split 4-4 after Justice Antonin Scalia’s death. Instead the court sent the cases back to the lower courts with instructions for the federal government and the challengers to try to work out a solution that would allow female employees to receive full contraceptive coverage while still respecting the employers’ religious beliefs.

In 2017, the Trump administration issued new rules that expanded the exemption from the contraceptive mandate and permitted private employers with religious or moral objections to the mandate to opt out of providing contraceptive coverage for their women employees. New Jersey and Pennsylvania sued, and contended that this violated the Affordable Care Act and was done in a manner inconsistent with the Administrative Procedures Act because there was no opportunity for notice and comment rule making. The district court ruled in favor of the states and the Philadelphia-based 3rd U.S. Circuit Court of Appeals affirmed.

The precise questions before the court are not about religious freedom; they concern interpreting the Affordable Care Act and administrative law. But the underlying issue is the very contentious question of whether the government can force employers to provide contraceptive coverage that violates the employers’ beliefs.

It is unusual to have a term with so many cases on the docket about religious freedom. But many believe that this is one of the areas where the conservative majority on the court is likely to significantly change the law, lessening the limits imposed by the Establishment Clause and expanding the protections for religious freedom. These cases will provide a strong indication of where the Roberts Court is going as to church-state questions.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.

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