Late last month, conservatives were dismayed when the U.S. Supreme Court handed down two deeply troubling rulings. One of those rulings struck down a law that required abortionists in Louisiana to obtain admitting privileges at a hospital within thirty miles of their abortion facility. The other found that Title VII, which bans employment discrimination based upon sex, also extends to discrimination based upon “sexual orientation” and “gender identity” – a dangerous precedent, as I explained here.
This week, however, I am pleased to report the Supreme Court has strongly defended religious liberty in another pair of rulings.
In the first decision, the Court upheld a rule promulgated by the Trump administration that carved out an exemption for religious organizations from the so-called “contraceptive mandate” in the Affordable Care Act (i.e. Obamacare). Under this exemption, religious employers with conscience objections are no longer required to provide insurance for their employees that covers abortifacient and contraceptive drugs.
In the second case, the Court ruled that religious schools have the right to hire and fire teachers without interference from the government. That is, the court decided that religion teachers are covered by the so-called “ministerial exemption.”
Both decisions were supported by a strong majority of the court, 7-2.
Little Sisters of the Poor
Conservatives were stunned in 2011 when the Obama administration promulgated a mandate, as part of the process of implementing the Affordable Care Act (ACA), that required employers to provide cost-free insurance coverage for contraceptives, sterilizations, and “emergency birth control.” The mandate was strongly denounced by conservatives, who pointed out that the controversial measure did not pass through Congress but was imposed unilaterally by the administration.
As Alexandra DeSanctis wrote last week in National Review, the mandate, “was tacked onto Obamacare after its passage by ideologically motivated, progressive bureaucrats in the HHS Department, then vigorously defended by the Obama White House (including, it should be noted, long-time Catholic Joe Biden, who showed no signs of a troubled conscience as his administration hauled charitable nuns and Catholic universities to court for meekly objecting to underwriting abortifacients).”
Pro-life bioethicists noted that so-called “emergency birth control” – which the mandate required religious employers to provide via insurance coverage – in fact often acts as an abortifacient, by preventing a newly-conceived embryo from implanting in the mother’s uterine wall. In effect, then, the Obama administration was forcing religious employers to fund drugs that they rightly believed resulted in the deaths of innocent human beings – an astonishing example of how far “tolerant” progressives are willing to go in imposing their worldview on others.
Even more astonishing was the zeal with which the Obama administration, and various Democratic states, strove to enforce the mandate in the face of concerted push-back. The Obama administration initially made a show of granting religious employers a so-called “accommodation” to the mandate. However, conservatives criticized the accommodation as little more than an accounting gimmick.
When numerous Catholic and other religious organizations refused to follow the mandate and sued, the Obama administration and several Democratic states stood their ground, pouring enormous resources into a protracted legal battle that ended up at the Supreme Court twice. The Little Sisters of the Poor, an congregation of Roman Catholic women religious that serves the elderly, became the de facto face of this David vs. Goliath battle. Photos of the habited sisters helped to highlight the extremism of what the Obama administration was seeking to do.
In November of 2018, after years of litigation, it seemed the issue was finally settled when the Trump administration promulgated a new regulation that unambiguously exempted religious employers with conscience objections from the mandate. However, the state of California immediately sued, and federal judges granted preliminary injunctions halting the implementation of the Trump administration regulation.
With this new ruling, however, the Supreme Court has finally settled the issue (for now). Justice Clarence Thomas wrote the majority decision. “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,” he wrote. “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.”
Justice Thomas concluded that the Trump administration clearly “had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption.”
Astonishingly, however, presumptive Democratic presidential candidate Joe Biden immediately responded to the ruling with a statement saying that if he becomes president he would revoke the exemption. It is mind-boggling that a man who continues to call himself a Catholic would invoke the power of the presidential office to force Catholic religious women to fund abortifacient drugs. If there are people who still do not understand why religious conservatives would vote for President Trump, look no further than this intolerant extremism from the Democratic party.
Protecting Religious Schools
The second important ruling out of the Supreme Court was in response to two separate cases – Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel – which had been combined into a single case.
The cases had to do with two different teachers at the two Catholic schools. In 2014 and 2015 the schools did not renew the teachers’ contracts. The teachers subsequently sued, claiming that they were fired due to age and disability, and not due to job performance issues. As Catholic News Agency reports, however, the schools responded that “they were exempt from employment discrimination laws under the ministerial exception, the legal doctrine under which government cannot interfere in the employment decisions of churches and religious institutions regarding the hiring and firing of ministers.”
The point is a critical one since if standard discrimination law does apply to teachers in religious schools, the government could theoretically prevent those schools from dismissing teachers in ways which would seriously hamper their ability to protect their religious identity. If, for instance, a Catholic school were to fire a teacher for teaching things directly contrary to the Catholic faith, or for violating Church teaching by entering a same-sex “marriage,” the teacher could sue the school for “discriminating” against him or her.
The decision is all the more important in light of the Supreme Court’s decision last month to expand interpretation of Title VII anti-discrimination provisions to cover “sexual orientation” and “gender identity.” This new decision at the very least provides some measure of protection from the implications of that other, badly-decided case.
In the majority decision Justice Samuel Alito reasoned, “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.” It would be overkill, he argued, to require that someone bear the title “minister” in order to qualify for the ministerial exemption, since the jobs that many teachers at religious schools perform are nearly indistinguishable from that of a minister.
As such, he said, “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.”
The past month has been a disappointing one at the Supreme Court. Many pro-lifers have been hoping that President Trump’s two appointments would tip the scales, and that overturning Roe v. Wade was now within reach. However, the court appeared to throw cold water on those hopes by ruling in favor of the pro-abortion side in a case widely viewed as a test case of how the court would rule on future abortion-related cases.
On the other hand, these two new cases have exposed the stakes of our political battles in more than one way. Not only do they show how important it is to have conservative justices sitting on our courts, but they also exposed the extremism of the Democratic party. If Joe Biden is willing to force Catholic religious women to fund abortifacient drugs against their consciences, then there is scarcely any progressive position that he is not willing to impose on the country with a heavy hand.
As Catholic Vote president Brian Burch said in response to Biden’s statement on the Little Sisters of the Poor case: “Joe Biden has removed any remaining doubt about how his administration would mistreat and marginalize Catholics if elected. From his support for taxpayer-funded pro-abortion extremism, to his pledge to continue to harass the Little Sisters of the Poor, Biden will be a wrecking ball against all things that Catholics hold dear.”