Acton Institute Powerblog

Little Sisters, big victories

Religious liberty won two significant victories at the U.S. Supreme Court on July 8. Justices ruled in two separate, 7-2 decisions that the federal government may not interfere in religious institutions’ hiring and firing of ministers, and that the government has the right to grant the Little Sisters of the Poor a religious exemption from a federal Obamacare mandate requiring employers to furnish female employees with no-cost birth control, sterilization, and potentially abortifacient drugs. The cases are a triumph for freedom of conscience and a rebuke to the theory and practice of federal regulatory overreach.

President Donald Trump praised the ruling, while Joe Biden called the Little Sisters’ victory “disappointing.”

In both cases, Justices Stephen Breyer and Elena Kagan joined the court’s five more conservative justices.

Keeping the government out of religious schools

In Our Lady of Guadalupe School v. Morrissey-Berru, justices strengthened the “ministerial exception,” the legal doctrine that churches, synagogues, and other religious bodies have the right to choose their own ministers, including schoolteachers they consider part of their broader, non-sacerdotal ministry. While this provision is not spelled out in the First Amendment, it flows naturally from the idea that the government cannot “prohibit the free exercise” of religion.

“The First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,’” wrote Justice Samuel Alito.

Two Catholic school teachers, Agnes Morrissey-Berru and Kristen Biel, sued after being fired by different schools in the Archdiocese of Los Angeles. The schools say they fired the teachers for cause, but the women complained to the federal government that the schools illegally terminated them out of age- or health-based discrimination. The Obama administration’s Equal Employment Opportunity Commission backed their lawsuits as part of a broader legal strategy to erode religious exceptions to government mandates.

Allowing judges to settle church employment issues – and possibly even reinstate heretical ministers – would “undermine the independence of religious institutions in a way that the First Amendment does not tolerate,” Alito wrote in the majority opinion. After all, judges would have to rule that ministers had been fired for a reason other than their adherence to the faith – requiring the government to decide a minister’s fidelity and competence.

“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,” Alito wrote.

The ruling built on its unanimous ruling in the 2012 Hosanna v. Tabor case. Unlike the plaintiff in that case, teaching religion took up less class time for the respective fifth-grade teachers in this case.

“There should no longer be any doubt that religious schools and institutions have the right to freely choose who will preach their religious message, teach their religious doctrine, and lead our future generations according to their religious tradition,” said Kelly Shackelford, President and CEO of the First Liberty Institute.

This week. Justice Alito set out a test to determine whether a church employee would qualify as a minister: “What matters, at bottom, is what an employee does,” including “educating young people in their faith, inculcating its teachings, and training them to live their faith,” he wrote – even if it is not the teachers’ primary subject. That raised the bar beyond trained catechists and religion teachers.

“It is a clear win for the First Amendment and religious liberty when the highest court affirms the right of religious institutions to be free of government interference and meddling,” said Grazie Christie, policy advisor for The Catholic Association. 

The court’s most liberal justices wrote that the government should have greater authority over the church, including policing its hiring decisions.

“Our pluralistic society requires religious entities to abide by generally applicable laws,” wrote Justice Sonia Sotomayor in a dissent joined by Ruth Bader Ginsburg. In their view, a minister had to have greater religious duties than other employees, so determining whether someone qualifies for the ministry is “context-specific.” Judges would determine this on a case-by-case basis.

But Justice Clarence Thomas wrote in his separate concurrence that the government should “defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’”

The government should humbly acknowledge the limits of its own understanding, he wrote.

“Judges lack the requisite understanding and appreciation of the role played by every person who performs a particular role in every religious tradition,” Thomas wrote. “What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.”

Some of those who praised the decision invoked the concept of sphere sovereignty pioneered by Dutch Reformed theologian and prime minister Abraham Kuyper. “It is not the government’s role to dictate who may teach the faith to the next generation,” said Travis Weber, vice president for policy and government affairs at the Family Research Council. “I’m glad the Supreme Court properly recognized the spheres of authority separating Church and State and protected this school’s ability to determine who will teach the faith to the children under their care.” The Acton Institute has been in the forefront of translating Kuyper’s works into English.

Little Sisters win again

The court also ruled on Wednesday that the government had properly extended a religious exemption to nuns who wished to opt out of a government mandate to provide contraception and sterilization to their employees, in violation of the Roman Catholic faith.

“Our life’s work and great joy is serving the elderly poor, and we are so grateful that the contraceptive mandate will no longer steal our attention from our calling,” said Mother Loraine Marie Maguire of the Little Sisters of the Poor.

The Little Sisters case takes place at the intersection of government overreach and federal regulation.

The Patient Protection and Affordable Care Act, conventionally known as “Obamacare,” required employers to provide “preventative care and screenings” without “any cost sharing requirements.” However, the bill didn’t say a word about the HHS mandate for “free” contraception. Instead, the ACA deferred the definition of “minimum essential coverage” to the federal bureaucracy.

The ACA grants unelected federal regulators “sweeping,” “capacious,” and “virtually unbridled discretion to decide what counts as preventive care and screenings,” wrote Justice Thomas in the 7-2 majority opinion. “No language in the statute itself even hints that Congress intended that contraception should or must be covered.”

He added that, shortly after the bill became law, the Obama administration “began promulgating rules” so hastily that it “did not proceed through the notice and comment rulemaking process, which the Administrative Procedure Act (APA) often requires before an agency’s regulation can ‘have the force and effect of law.’”

Outside of an exceedingly narrow religious exemption, the Obama administration required all employers to provide its employees with contraception, sterilization, and potentially abortifacient drugs with no co-pay or face fines of up to $100 a day per affected employee.

The Little Sisters of the Poor, a religious nonprofit, did not fit the exemption. They sued in 2013, shortly after the rules were finalized.

The nuns already prevailed at the Supreme Court in 2016, when the court unanimously overturned lower court rulings and invalidated government fines against the sisters – but ordered the sisters and the Obama administration to work out a compromise, which never materialized.

But what federal regulation giveth, federal regulation taketh away. In 2017, the Trump administration wrote a new regulation greatly expanding the religious exemption for nonprofits and for-profit businesses – and added another provision for those who object to providing some or all of the required goods on the basis of morality or “conscience” instead of religion.

As in so many other areas, the Trump administration erased the Obama administration’s legacy of executive actions.

The Little Sisters had no objection to the new guidelines, but multiple states sued, arguing the Trump administration had not followed all the legal procedures necessary for the rules to take effect. In the Little Sisters of the Poor v. Pennsylvania, et. al., the Supreme Court ruled the exemptions are “free from procedural defects.”

However, this may not be the end of the nuns’ legal woes. In a concurrence joined by Justice Neil Gorsuch, Alito wrote that politicians who are unfriendly to religious liberty will almost certainly seize upon another strategy in their quest to sue the sisters into compliance. Justices should “bring the Little Sisters’ legal odyssey to an end” by ruling on whether the Religious Freedom Restoration Act of 1993 “required” the government “to create the religious exemption (or something very close to it),” Alito wrote. The court already ruled in Burwell v. Hobby Lobby (2014) that closely-held corporations an exemption from the mandate under RFRA, which was signed by President Bill Clinton in 1993.

“America deserves better than petty governments harassing nuns,” said Mark Rienzi, president of the Becket Fund for Religious Liberty. “Governments don’t need nuns to distribute contraceptives. But they do need religious groups to care for the elderly, heal the sick and feed the hungry. These governments all have real work they ought to be doing rather than dividing people with old and unnecessary culture wars.” Religious institutions contribute between $1.2 and $4.8 trillion to the U.S. economy every year, according to a recent study.

However, the court’s leftmost justices disagreed.

Religious liberty vs. “the right” to contraception?

Justice Ginsburg’s dissent, joined by Sotomayor, played off the dispute as a fight between two competing “rights”: the unalienable right to free expression of religion guaranteed by the First Amendment  vs. a newly asserted right to free birth control. The liberal justices demanded a “balanced approach” between religious liberty and “the rights” of those demanding federally-mandated, employer-funded contraception.

Allowing employers to run their businesses according to their own moral code, Ginsburg and Sotomayor wrote, would “allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” namely the employees demanding their employers furnish them with contraceptives. “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote.

If allowed to stand, the court’s decision would leave “to seek contraceptive coverage from sources other than their employer’s insurer, and,” possibly “to pay for contraceptive services out of their own pockets,” she continued. “The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result.”

Justice Thomas eviscerated the notion that even the ACA, much less the Constitution, guaranteed a right to contraception. He noted the Obamacare bill does not mention contraception and federal guidelines grandfather in old plans, exempt churches, and does nothing for women who do not work outside the home. Even if the new regulations made it more difficult for some women to get contraceptives, “[s]uch a policy concern cannot justify supplanting the text’s plain meaning,” Thomas replied.

In fact, “the states that challenged the HHS rules were unable to find a single individual plaintiff who was allegedly harmed by the religious and moral exemptions,” said John Bursch of the Alliance Defending Freedom. “That shows that contraceptives are widely available, and that no compelling reason exists for the government to violate the religious and moral convictions of organizations who don’t wish to provide abortifacients and artificial contraception.”

Indeed, it calls into question the need for the entire government regulation – which the Trump administration has inconceivably not rescinded – itself.

However, his deputy campaign manager called the ruling “a landmark win for religious liberty.” That contrasted sharply with the view of the presumptive Democratic presidential nominee.

Biden: Nuns’ victory is “disappointing”

Joe Biden, who often burnishes his Catholic identity, said he would reverse the decision that gave the nuns their court victory.

“As disappointing as the Supreme Court’s ruling is, there is a clear path to fixing it: electing a new [p]resident who will end Donald Trump’s ceaseless attempts to gut every aspect of the Affordable Care Act,” Biden said in a statement. “If I am elected, I will restore the Obama-Biden policy that existed before the Hobby Lobby ruling.”

His campaign called the Trump administration’s religious exemptions “cruel” and “unacceptable.”

For now, religious organizations are cautiously optimistic. They view this week’s two decisions as the court taking a step toward redeeming itself from other decisions this term, which call into question employers’ ability to live out their faith in the marketplace.

“Despite the egregious decision in the recently-decided Bostock v. Clayton County case,” this week’s court “decision suggests that religious institutions still have a prayer of preserving and promoting their biblical teachings,” said Tony Perkins, president of the Family Research Council. “This tiny step is far from sufficient, but it does offer a glimmer of hope that the Supreme Court has not forgotten that religious freedom is the most fundamental right of all.”

(Photo credit: Little Sisters of the Poor at the Supreme Court in 2020. Becket Fund for Religious Liberty.)

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.