Breaking: SCOTUS expands religious-liberty and ministerial-exception protections in 7-2 decisions on Little Sisters, discrimination claims

The Supreme Court wanted to end their 2019-20 with a bang — and dropped two Holy Hand Grenades of Antioch this morning. On two 7-2 votes, the court upheld free-exercise claims in religious liberty, the more notable of which came in the long-standing fight by the Little Sisters of the Poor against the HHS contraception mandate. Clarence Thomas wrote the majority decision, while Ruth Bader Ginsburg and Sonia Sotomayor dissented:


The Supreme Court on Wednesday ruled that the Little Sisters of the Poor are exempt from an Obama-era mandate to provide contraception in their health care plans.

The case, Little Sisters of the Poor v. Pennsylvania, marked the Catholic religious order’s second time before the Supreme Court, after nearly 10 years of legal dispute. It arose when the New Jersey and Pennsylvania state governments sued the Trump administration for exempting the Little Sisters from the contraception mandate.

Thomas, as usual, cuts to the heart of the dispute, and smacks the dissenters for essentially attempting to rewrite the ObamaCare statute:

By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.7

The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are interested in receiving such coverage. See post, at 1, 21 (opinion of GINSBURG, J.). It also argues that the exemptions will make it significantly harder for interested women to obtain seamless access to contraception without cost sharing, post, at 15–17, which we have previously “assume[d]” is a compelling governmental interest, Hobby Lobby, 573 U. S., at 728; but see post, at 10–12 (ALITO, J., concurring). The Departments dispute that women will be adversely impacted by the 2018 exemptions. 82 Fed. Reg. 47805. Though we express no view on this disagreement, it bears noting that such a policy concern cannot justify supplanting the text’s plain meaning. See Gitlitz v. Commissioner, 531 U. S. 206, 220 (2001). “It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Lewis v. Chicago, 560 U. S. 205, 215 (2010).

Moreover, even assuming that the dissent is correct as an empirical matter, its concerns are more properly directed at the regulatory mechanism that Congress put in place to protect this assumed governmental interest. As even the dissent recognizes, contraceptive coverage is mentioned nowhere in §300gg–13(a)(4), and no language in the statute itself even hints that Congress intended that contraception should or must be covered. See post, at 4–5 (citing legislative history and amicus briefs). Thus, contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself.


Hence the term “HHS mandate.” This came about as a matter of regulatory policy, not statutory requirement, which means regulators can change those policies in accordance with the APA and other procedural guidelines. Given that this has been going on for nine years now, anyone who needed notice of administrative change should have been well informed by this point.

Besides, Thomas argues, the imposition on religious liberty is very plain in this instance, and the regulation should have been subject to RFRA:

Moreover, our decisions all but instructed the Departments to consider RFRA going forward. For instance, though we held that the mandate violated RFRA in Hobby Lobby, we left it to the Federal Government to develop and implement a solution. At the same time, we made it abundantly clear that, under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities. That is, they could not “tell the plaintiffs that their beliefs are flawed” because, in the Departments’ view, “the connection between what the objecting parties must do . . . and the end that they find to be morally wrong . . . is simply too attenuated.” Hobby Lobby, 573 U. S., at 723–724. Likewise, though we did not decide whether the self-certification accommodation ran afoul of RFRA in Zubik, we directed the parties on remand to “accommodat[e]” the free exercise rights of those with complicity-based objections to the self-certification accommodation. 578 U. S., at ___ (slip op., at 4). It is hard to see how the Departments could promulgate rules consistent with these decisions if they did not overtly consider these entities’ rights under RFRA.

Finally, Thomas concludes by hinting at the absurdity of applying a contraception mandate on a group of nuns:

For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. “[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless.” Complaint ¶14. But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.

We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.


Some of the news coverage of this decision is already claiming that the court has weakened the overall mandate. That’s not actually true; what Thomas’ opinion does, though, is make it clear that HHS can craft religious exemptions to it. The Hobby Lobby decision probably did much more to allow a broader access to those exemptions than Little Sisters does here.

The second decision is more far-reaching, however, and the media angst is at least rational here. In the long-awaited ruling in Our Lady of Guadalupe School v Morrissey-Berru, the court ruled 7-2 that religious schools have wide latitude in selecting instructors and other personnel in relation to religious convictions. This strengthens an earlier unanimous ruling in Hosanna-Tabor, but creates a much broader range for action than that earlier ruling did:

“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,” wrote Justice Samuel Alito for the 7-2 majority. “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.”

A 2012 Supreme Court ruling protects churches, the schools they run, and other religious organizations from lawsuits brought by employees who perform a “ministerial” function. Allowing such suits, the court said then, would invite government interference in a religious institution’s internal affairs.

… [Agnes] Morrissey-Berru sued Our Lady of Guadalupe School in Hermosa Beach for age discrimination when her contract was terminated. Kristen Biel sued St. James School in Torrance when her contract wasn’t renewed after she was diagnosed with breast cancer. She said the school violated the Americans with Disabilities Act.

In both cases, the churches said they were protected from discrimination lawsuits. But the Ninth Circuit Court of Appeals in San Francisco refused to throw the cases out, ruling that even though the teachers taught some religious subjects, their duties were not ministerial. Morrissey-Berru is not a practicing Catholic and was not required to attend any religious training for most of the time she taught at Our Lady of Guadalupe.

Unlike Hosanna-Tabor, these two cases didn’t involve contradictory life-style choices or teachings in the school environment. Neither instructor got dismissed for rebelling against church doctrine. Morrissey-Berru got demoted and claimed age discrimination when she was replaced with a younger woman, and Biel was arguing an ADA claim. The schools claimed other reasons for terminating those employments. Both claimed in separate ways that Biel and Morrissey-Berru had done poorly in implementing a new curricula, and Biel had only worked at her school for a year. In fighting the lawsuits, the school invoked the ministerial exception claim under Hosanna-Tabor, but the Ninth Circuit basically called that a non-sequitur.


In his majority opinion, Samuel Alito writes that the ministerial exception applies regardless of which discrimination law is in question. The point of that exception is to exempt religious organizations from outside scrutiny of those decisions, as the First Amendment protection of free expression of religion must take precedence:

A variety of factors may be important in determining whether a particular position falls within the ministerial exception. The circumstances that informed the Court’s decision in Hosanna-Tabor were relevant because of their relationship to Perich’s “role in conveying the Church’s message and carrying out its mission.” 565 U. S., at 192. But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision 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 a private religious school’s mission.

Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties, such as educating their students in the Catholic faith and guiding their students to live their lives in accordance with that faith. Their titles did not include the term “minister” and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employees in the life of the religion in question is important.

The Ninth Circuit mistakenly treated the circumstances the Court found relevant in Hosanna-Tabor as a checklist of items to be assessed and weighed against each other. That rigid test produced a distorted analysis. First, it invested undue significance in the fact that Morrissey-Berru and Biel did not have clerical titles. Second, it assigned too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling that Perich. Third, the St. James panel inappropriately diminished the significance of Biel’s duties. Respondents would make Hosanna-Tabor’s governing test even more rigid. And they go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a “practicing” member of the religion with which the employer is associated. Deciding such questions risks judicial entanglement in religious issues.


The free exercise of religion by non-secular schools has to mean that the state has little or no role in mediating termination disputes, Alito writes:

But it is instructive to consider why a church’s independence on matters “of faith and doctrine” requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith.9 The ministerial exception was recognized to preserve a church’s independent authority in such matters. …

The case featured two concurrences. In the first, JUSTICE THOMAS stressed that courts should “defer to a religious organization’s good-faith understanding of who qualifies as its minister.” Id., at 196. That is so, JUSTICE THOMAS explained, because “[a] religious organization’s right to choose its ministers would be hollow . . . if secular courts could second-guess” the group’s sincere application of its religious tenets. Id., at 197.

The second concurrence argued that application of the “ministerial exception” should “focus on the function performed by persons who work for religious bodies” rather than labels or designations that may vary across faiths. Id., at 198 (opinion of ALITO, J., joined by KAGAN, J.). This opinion viewed the title of “minister” as “relevant” but “neither necessary nor sufficient.”

This is all solid reasoning, but it gives religious organizations a rather large carte blanche even on its less ministerial jobs. The problem, as Alito points out, is in determining which is which, and Alito concludes that the state is in no position to dictate those terms in light of the First Amendment.

Sotomayor points out the scope of that carte blanche in her dissent:

In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protections, I respectfully dissent.  …

The “ministerial exception,” by contrast, is a judge-made doctrine. This Court first recognized it eight years ago in Hosanna-Tabor, concluding that the First Amendment categorically bars certain antidiscrimination suits by religious leaders against their religious employers. 565 U. S., at 188–190. When it applies, the exception is extraordinarily potent: 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. Id., at 194–195. That is, an employer need not cite or possess a religious reason at all; the ministerial exception even condones animus.

When this Court adopted the ministerial exception, it affirmed the holdings of virtually every federal appellate court that had embraced the doctrine. Id., at 188, and n. 2. Those courts had long understood that the exception’s stark departure from antidiscrimination law is narrow. Wary of the exception’s “potential for abuse,” federal courts treaded “case-by-case” in determining which employees are ministers exposed to discrimination without recourse. Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F. 2d 360, 363, n. 3 (CA8 1991). Thus, their analysis typically trained on whether the putative minister was a “spiritual leade[r]” within a congregation such that “he or she should be considered clergy.” Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1168–1169 (CA4 1985) (internal quotation marks omitted); see also Hankins v. Lyght, 441 F. 3d 96, 117–118, and n. 13 (CA2 2006) (Sotomayor, J., dissenting) (cataloging Circuit consensus). That approach recognized that a religious entity’s ability to choose its faith leaders—rabbis, priests, nuns, imams, ministers, to name a few—should be free from government interference, but that generally applicable laws still protected most employees.


It does seem a bit amusing to read Sotomayor’s highlighting of a “judge-made doctrine.” Otherwise, though, Sotomayor has a point, albeit perhaps countered by Alito’s analysis. One might not need to be called a “minister” for a ministerial exception, but what is the functional limit of that exception? Is there any? Would churches and schools be able to apply it to secretaries and janitors? What about administrative personnel at schools that might come into contact with students but otherwise have no teaching role? Those could fit inside Our Lady of Guadalupe, or perhaps not, but it might take another court case to find out.

The problem is that identifying ministerial roles is not the business of courts — it’s the business of the religious institutions themselves. At least, it is now, in Alito’s controlling opinion. This is much more wide-ranging than Little Sisters, and it’s going to be more hotly debated than abortion coverage for nuns.

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