Supreme Court Expands Religious Liberties

their health plans. It was the third time the Supreme Court has ruled in the fractious debate over the contraceptive mandate, and during your arguments, Chief Justice John Roberts expressed some frustration that neither side seemed to want to work the problem out. Well, the problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want

it to work because they want to uh impose the mandate? Uh. Is it really the case that there is no way to resolve those differences? But just as Ruth Bade Ginsburg, who dissented in the case with Justice Sonia Sotomayor, conveyed her concern for the women who would immediately lose access to free contraception as many as one thousand, four hundred according to a government estimate. At the end of the day, the government is throwing into the wind the women's entitlement

to seamless no cost to them. It is requiring those women to pay for contraceptive services. Joining me is Richard Garnett, a professor at Notre Dame Law School. In three cases involving religion, this term the decisions expanded religious liberty is the line between separation of church and state moving or blurring.

So as I see it, it's worth distinguishing among these three cases in the sense that decisions involving the Catholic schools and teachers and the Ministry of Exception that case is best seen as involving and vindicating the separation of church and state. That is the if you think about what the core idea in the separation of church and state is that the government should lack the power to decide who's going to be a minister or a bishop.

I mean, if you think of the oldest church state controversies that we have are when kings wanted to decide who was going to run the church and the principle that was applied in the in the school's cases today should be seen as a decision that affirmed the separation of church and state. It affirmed that secular and civil courts shouldn't be interfering or inserting themselves into essentially religious questions. Now,

let's move to the Little Sister's case. That case, at this point, since been going on for so long, is really a case about administrative law and procedure. But if you scrape off the top, get down a little deeper, it is the case about whether the government's allowed to a comidate religion. But in the American tradition, we've never thought that the separation of church and state prevents accommodations.

We've sometimes said that the constitution doesn't require them, and we've said in some context that even if you have a religious objection to a law, you're not constitutionally entitled to an exemption. But when legislatures or government officials crafts laws in such a way that religious people are accommodated, in our tradition, again we haven't thought that violates the

separation of church and state. The case that represents, I think the most kind of striking development is the Espinosa case from Montana, which you mentioned about the blame amendments

and the funding of religious schools. As you know, there was a there was a time in American constitutional law and the sixties, seventies and early eighties when people thought that the a lot of justice is thought too that the separation of church and state required that the government not fund, not even advanced in any way, even indirectly,

the missions of religious schools. Now where the doctrines move, there is that so long as the government is being neutral and treating private and secular alternatives alike, that this kind of cooperation is okay. But certainly I think there are there are lines that are kind of universally recognized in addition to the to the ones that we're in the ministry exception cases. Today, all the justices would agree that the government could never require or coerce involvement in

religious activities or prayer or anything of that kind. I think all the justices agree, as they should, that the government shouldn't have any role in deciding what particular churches, um liturgy or rituals or ministerial training should be. So in a sense, I think we're we're arriving at a place that is consistent with the historical understanding of what the important principle of church state separation involved, which was

keeping political and religious authority distinct. And I think we're kind of moving away from the view that again was probably on offer in the nineties and seventies, which was hostile to any form of sort of cooperation between faith and the public square. Let's discuss the cases separately now, So the case involving the contraceptive mandate, the Trump administration expanded the ability to opt out of paying for contraceptive coverage from houses of worship to include publicly traded companies

and universities with religious or moral objections to contraception. Tell us about that decision. The Court's ruling was focused primarily on whether or not the administration followed the correct procedures when it created this accommodation. So it's mainly an administrative law opinion. The court's opinion is not really about whether

or not this exemption is a good idea. Now, as you said, the Trump administration expanded the religious exemption that the Supreme Court had affirmed in Hobby Lobby, for example, several years ago, to include entities that had quote moral, not just religious, but moral objections to providing conception coverage in their insurance policies. Reasonable people can disagree about whether

that expansion is good policy. The Religious Freedom Restoration Act, which arguably does require an exemption for religious employers, wouldn't apply to employers that have moral but not religious objections. So the accommodation that was provided does go beyond what the federal religious freedom law arguably requires. But in a sense that's fine. The question is just whether the administration kind of followed the correct procedure for creating this exemption.

I've been talked to professor Richard Garnett of the Notre Dame Law School about cases involving religious liberties. The Supreme Court handed down to Ricky said that the case involving the contraceptive mandate was basically an admit a strait of law case. How did Justice Thomas answer the claims that

the Trump administration had not followed the correct procedures? Yeah, so there's a law called the Administrative Procedure Actors, and there's other precedents and practices that require certain pathways to

be followed before administrative rules are changed. The challengers to this exemption said that the administration kind of didn't dot all the eyes and cross all the teas that were required, and Justice Thomas for the court said, yes, they did, but there wasn't any kind of unlawful departure from the procedures that are required in order for an agency to

change its rules. You know, the idea here is that, you know, it's often the case, and we might well see this in a couple of months, that when a new administration comes in and has different priorities and agencies adjust the rules, we want to make sure they don't change their rules and kind of a haphazard or random fashion. And so courts do want to make sure that they

follow the proper procedures. And here again, whether one likes the new accommodation or not, the question is really, well, is this administration following the correct procedure to put into place the rules that it wanted. And we've seen in some other cases the court telling the administration that it hadn't followed the proper procedures right in the in the census case or in the recent case about the DOCTA, we had instances where the court told the administration you

didn't do this right. But in this case, the Court thought the administration had followed the proper procedures and that the accommodation was therefore permissible. The Court didn't say that the accommodation was required by the Constitution, just that it's permissible. Justices Elina Kiggainst. Stephen Ryer joined the majority, but Kagan wrote a concurring opinion, and she said the lower courts could still consider arguments that the administration didn't engage in

reason decision making. What is she referring to here, So, in administrative law, you have questions about sort of following the correct procedures, but you also have questions that involve making sure that agencies are, as she put it, engaged in reason decision making, that they're not being kind of arbitrary and capricious, that the records built up well enough.

And I take her point to be that since this particular case involved challenges more to the procedure that the administration had followed, that it would still be possible, you know, again, in a later stage in this litigation, that this litigation keeps ongoing to say, Okay, maybe it is true that the proper pathways were followed. But it's still the case that the agencies have to provide some evidence that they rationally considered all factors and balanced all costs of benefits,

and that maybe that didn't happen here. So for some who are wondering, like will this case about the contraception mandate ever end? I think that Justice Kagan's point might have been, well, it's not necessarily over yet, there's still other other bases to challenge it. But Justice Kegan agrees that the challenge in this case didn't go through. What happens now. I thought that this was okay, they're good to go on this. Now. I don't know what's going to happen next. I take her to be saying this

is something that could happen. But obviously it's a it's a question whether litigants will decide to bring a different challenge again, one that's more substantive and less procedural to this particular accommodation. And of course, you know, given that we're coming up on an election and there might well be a change in administration, you could very well see a new administration trying to change the very regulations that were an issue in this case. So we have to

wait and see. Splite one thing. Well, let's say you have a publicly traded company and they say we have moral objections to contraceptives. Is that all they have to do? Do they have to do anything to prove that they actually have those and they're not just trying to get away with not paying for contraceptive coverage. Yeah. Generally speaking, in cases involving religious exemptions, courts may and do inquire

into whether the claim is quotes fear. So there has to be some evidence that the asserted objection is, you know, being made in good faith. The question is that whether the objectors are right. You know, the courts are supposed to get into the question of, you know, what's the moral right answer to this question, but you're allowed to ask whether a claimant is sincere. Courts do this all

the time. If you think back to the hobby Lobby case. Um, you know, there was plenty of evidence that the owners of Hobby Lobby did have certain religious beliefs, that they

were representing them accurately and so on. But you know, presumably if Ford Motor Company were to come forward and say, we don't want to do this anymore, we don't want to provide these benefits because we have a religious objection of court, which they will show me one bit of evidence that you have this objection or that you've ever tried to assert it in other cases, and I suspect

the court would be pretty skeptical about that. And of course it's not clear at all that publicly traded corporations have any incentive to gain this particular account adation, since there's a lot of evidence that UM providing contraception coverage

to employees says corporations money. So that would suggest that when a corporation does as certain objection, like Hobby Lobby did, they probably are sincere because they're not trying to again, they're not trying to get some kind of financial advantage. I remember that during the oral arguments, Justice Ruth Bader Ginsburg, who during this argument I believe was taking part from the hospital, was very fiery in her questioning how how

would you characterize her dissent? I would say it was kind of in keeping with the tone of our argument. You know, um, this is in many ways. I mentioned a couple of minutes ago that this case has been going on for a long time, and Justice Ginsburg dissented in the Hobby Lobby case, she thinks that the the policy of the contraception coverage mandate. I think she thinks it's a wise policy and that it's certainly legally permissible.

She objected here quite strongly, obviously, to the administration's decision to to revise and to expand the accommodation that had been put in place by Obama. She was very direct in her disagreement. And let's turn out to the second case, the ministerial exception explain the court's decision. Sure, so these

are two cases that presented basically the same issue. They involved parochial school teachers at Catholic schools who've been fired, who had then filed employment discrimination claims, and the question was whether these claims can go forward given that eight years ago, a unanimous Supreme Court said that the First Amendment doesn't allow employment discrimination lawsuits to be used as a way to kind of second guests religious schools decisions about who will or who will not be They use

the term minister, but you know, a leader, a teacher, somebody who plays an important religious role. Um. That was years ago, and the Court again had been unanimous in

a case involving a teacher in a Lutheran school. The question here was whether these teachers were any different from the teacher in the case eight years ago seven justices, So the five Conservatives plus Justice Justices Kagan and Bryer agreed that this case presented basically the same issue as the Josiana Table case eight years ago, and that because the First Amendment both you know, the separation of Church and State and the free exercise clause, the First Amendment

tells governments that they don't get to decide who should or who should not be involved in religious education and leadership, so that these lawsuits can't go forward because, if you think about it, an employment discrimination lawsuit brought by a religious school teacher is basically a request to a court to tell a religious school, Hey, this person gets to be a religious school teacher for you, whether you like

it or not. The Ninth Circuit Court of Appeals had said that these cases could go forward because the Ninth Circuit adopted, but the Court told us was a a narrow version of this ministry or exception doctrine. And so I think, from my perspective anyway, the way to see these cases that came down today is that the court basically said, we we meant what we said eight years ago.

The Ninth Circuit was wrong to shrink this doctrine, and we're just reaffirming what we said before, mainly that there are some employees of religious institutions who are involved in the religious mission of those institutions, and that the principle of religious freedom and the principle of church state separation doesn't allow courts to interfere in the decisions about who should or should not be a minister. Did the majority opinion give any guidance for who is a teacher who

is involved in religious education? Does there have to be more than just a teacher? In a sense, what the majority said today was, you can't reduce this question to kind of a bright line test. You can't reduce it

to the presence or the absence of any one particular factor. So, for example, it doesn't matter, or at least, it's not the only thing that matters, whether somebody has a title of minister or pastor or rabbi, because after all, there's lots of religious organizations that might be newer or unfamiliar or just different. They don't use those terms, and so you wouldn't want to adopt a rule that kind of privileged religions that use certain titles over ones that didn't.

And the court also said, like, there's a real danger to make the test depend on, well, how much religious training does the person have to have, because then you have courts trying to evaluate, you know, what counts as religious training and whatnot. So what the court did is really just say, you have to look at the function.

You have to look at what the employee is being asked to do by the religious organization, and if the employee's role is connected to the religious organization's mission, then that employee should be covered. So it's not a bright line test. That more the courts saying, look, we articulated this principle eight years ago. The Ninth Circuit tried to convert that principle into a more of a mechanical test, and the Court here said, that's not what we want.

We want courts to be appropriately deferential to the fact that different religions have different ways of arranging themselves, and that courts should ask the more general questions, is this employee playing a part in the religious mission of the institution, And if the employee is, then it should be up to the religious institution to decide, for better or worse, whether to hire or fire that person. Thanks Rick, That's Richard Garnett of Notre Dame Law School, and that's UT

for this edition of Bloomberg Law. I'm June Grossel. Thanks so much for listening, and remember to tune in to The Bloomberg Lawn Show every week now at ten DM Eastern right here on Bloomberg Radio.