By The Rev. James F. Sweeney, ‘15

The October 2019 Term of the Supreme Court of the United States produced an unprecedented number of potentially landmark religious liberty decisions, necessitated by the rapid rise of rigid secularism as a major force in American culture and politics. Less than two generations ago, the accommodation of religious belief and practice was simply a given in law and politics. But times have changed. Because religious belief and practice have been marginalized culturally and politically, the state’s willingness to accommodate the faith community has all but disappeared.  As a consequence, during the term just concluded, the Supreme Court heard an unusually large number of religious freedom cases, all but one of which have serious implications regarding the future ability to exercise those rights.

By the conclusion of the term in early July, a majority of the current justices signaled a cautious willingness—at least for the moment—to continue to protect the First Amendment religious liberty rights of religious believers from increasingly aggressive infringement by government agencies and private organizations advancing a secularist political and legal agenda. While the majority’s apparent affirmation of the continuing vitality of religious freedom rights is a welcome outcome, religious believers should remain deeply concerned that these decisions were required at all in order to safeguard rights that have been fundamental to American liberty for two centuries and should have, in the first instance, been respected and accommodated without controversy. Moreover, the relatively thin margin supporting religious liberty rights also remains a serious, ongoing concern.

Two of the Court’s most controversial decisions this term—Bostock v. Clayton County and Our Lady of Guadalupe School v. Morrissey-Berru—are particularly significant from a religious freedom standpoint. In many respects, these cases collectively raise more questions than they answer. In Bostock, Justice Gorsuch, writing for a 6-3 majority of the Court, concluded that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 also applies to discrimination on the basis of homosexuality and transgender status. Previously, “sex discrimination” under Title VII had always been understood to mean biological sex, not sexual orientation or gender identity. Indeed, in their strongly-worded dissenting opinions, Justices Thomas, Alito, and Kavanagh criticized the majority for legislatively revising the law, as opposed to interpreting it as it was written and enacted by Congress. Bostock caused considerable concern among religious organizations, particularly educators, who feared that religious school teachers and staff openly living in a manner inconsistent with religious teachings and beliefs were now protected by Title VII. This was a deeply problematic development for religious institutions that adhere to traditional Christian and biblical principles regarding sexual morality. 

But then just three weeks after handing down Bostock, in what may be an effort to protect the religious freedom rights of churches and religious schools, the Court reaffirmed, and quite possibly may have slightly broadened, its holding of eight years ago in Hosanna-Tabor Lutheran Church and School v. EEOC that the First Amendment-based “ministerial exception” bars most employment-related lawsuits against religious organizations by employees whose positions involve some form of religious ministry. In Guadalupe, Justice Alito, writing for a 7-2 majority of the Court, concluded that the First Amendment prohibited employment discrimination claims brought by two elementary school teachers against the parochial schools that employed them.  The Court concluded that both teachers were “ministers,” exempt from federal employment discrimination claims, because training young people to live their faith is the core mission of a religious school. Such being the case, the First Amendment protected the schools’ decision to terminate each of the involved teachers.

Was Guadalupe intended to protect religious schools and churches from discrimination lawsuits based upon Bostock? Are these two clearly significant decisions intended to be companion cases? We do not know. What goes on in the justice’s private conference room is perhaps the best kept secret in the federal government. We simply do not know what the justices intended.  But, reading the cases together does seem to suggest that Guadalupe could well be the shield given by the Court to religious organizations to protect their right to live out their religious beliefs in the wake of Bostock. The next few years will give us the answer to these very important questions.

In another set of seemingly-related decisions announced at the end of the term, the Court appears to have cleared the way for religious schools and organizations to participate in government programs and receive public benefits on an even footing with public schools and secular organizations. In the first of these two important decisions, the Court struck a potentially fatal blow to state Blaine Amendments, which were added to the constitutions of 38 states in the late 19th and early 20th century. Blaine Amendments, named after the prominent 19th century Speaker of the House and United States Senator who advocated for such a law, prohibit state governments from allocating any public funds to religious organizations and have been used for many years to block the disbursement of public funds for any purpose to religious organizations. Chief Justice Roberts, writing for the 7-2 majority in Trinity Lutheran Church v. Comer, concluded that the denial of generally available state benefits to an organization because of its religious character generally discriminated against religious belief and violated the Free Exercise Clause of the First Amendment. Religious organizations now appear to stand on equal footing with regard to secular organizations pertaining to the receipt of generally available public benefits.

In a related 5-4 decision handed down just four days after Trinity Lutheran, the Court, in Espinoza v. Montana Department of Revenue, found a “no aid” to religious schools provision in Montana’s tax credit scholarship program, which provided tuition assistance to families sending their children to private schools, unlawfully discriminated against religious schools in violation of the Free Exercise Clause. Writing again for the majority, Chief Justice Roberts noted that the First Amendment  protects religious observers against unequal treatment and prohibits laws imposing special disabilities on the basis of religious status.  Because Montana’s “no aid” provision excluded religious schools from eligibility to participate in the program, it violated the Free Exercise Clause.  Read along with Trinity Lutheran, Espinoza appears to clear the constitutional way for the use of tuition vouchers and tuition tax credits for religious schools in those states having some form of tuition voucher or tuition tax credit programs. But, in many states, such programs have been consistently opposed and defeated by powerful teachers’ unions, which exercise extraordinary political influence over state legislatures, and that is unlikely to change regardless of the Court’s decision.

Finally, in a decision of limited scope but significant political importance to American Christians, the Court upheld the Trump Administration’s 2017 decision to broaden the applicability of the exemption from the Women’s Health Amendment to the Affordable Care Act (“Obamacare”), which required employers that provide group health insurance plans to cover contraceptive services in those plans. For the past ten years, the Little Sisters of the Poor, a Roman Catholic religious institute for women, has been opposing the government’s effort to coerce them into providing contraceptive benefits to their employees. The Sisters opposed the requirement on the grounds that funding the use of contraceptives, a practice contrary to well-known Catholic moral and religious teaching, violates their Free Exercise rights. Without expressly addressing the Sisters’ religious freedom rights, a 7-2 majority in Little Sisters of the Poor v. Pennsylvania upheld the Administration’s decision to expand the breadth of the exemption on procedural grounds, relieving the Sisters of the legal obligation to provide contraceptive benefits to their employees.  The case ends—at least for the remainder of the Trump Administration—the Little Sisters’ long battle to conduct their ministry in conformance with Catholic moral beliefs.

The October 2019 Term will likely be remembered as one dominated by questions of religious liberty. The Court grappled with balancing the cultural and political demands of secularist activists against the religious liberty rights of churches and religious organizations. At issue was the right of individual believers and religious organizations to live their public and personal lives, and carry out their religious missions, with fidelity and authenticity.  It remains to be seen whether the Court was able to strike a balance that works—or, for that matter, whether secularist activists will even accept any accommodation of religious liberty rights.  But, if recent experience is indicative of what is to come in the months and years ahead, this conflict is still just getting started.

Fr. James Sweeney practiced law for more than 30 years as a religious institutions and religious liberty lawyer, representing some of the largest religious organizations in the United States.  A priest of the Anglican Diocese of San Joaquin, he currently serves as Assistant Head of School and Dean of Students at Pacific Bay Christian School in the San Francisco Bay Area and is an alumnus and a Member of the Board of Visitors of Nashotah House Theological Seminary.