The Supreme Court finished up its latest sitting with four opinions over the past month addressing the contours of religious liberty protections in the United States. Viewed together, they paint a picture of a court that right now is interested in addressing cases and arguments that present church-state dilemmas through the language and logic of religious discrimination. Where legal disputes lack that valence—where cases require adjudging between competing social values—the court’s instinct is one of avoidance.
This pattern reflects, in many ways, how Americans think about the relationship between church and state in the present moment. While it remains far from clear how we, as a society, think religious liberty stacks up against other values, there exists a broad consensus that religious discrimination is beyond the pale. And as courts, scholars, and advocates increasingly press arguments in terms of religious discrimination, it is shining a spotlight on minority religious communities whose small numbers and more limited political power make them natural advocates for the underlying dynamics of religious discrimination. Not surprisingly, these trends have pushed—and are likely to continue pushing—Jewish religious liberty advocacy to the fore.
To understand how these dynamics work, consider the court’s decision earlier this month in Little Sisters of the Poor v. Pennsylvania. At present, the Affordable Care Act requires employers to provide their employees with health insurance that also covers certain forms of contraception. In 2017, on the heels of five years of litigation, the departments of Health and Human Services, Labor, and the Treasury jointly granted an exemption to employers who objected, on religious grounds, to including contraception coverage in health insurance plans. Pennsylvania claimed that those departments lacked the authority to grant the religious exemption—a claim that made its way to the Supreme Court.
To uphold the exemptions, the court had two options. The first was to hold that the government was required, under the federal Religious Freedom Restoration Act, to grant this exception. Thus, it didn’t matter whether, as a technical matter, the departments had the authority to grant the religious exemption—already existing religious liberty law required it.
But the court chose against pursuing such an argument and one can see why. Doing so would have required determining how the burden on the employers’ religious liberty stacked up against the government’s interest in providing cost-free contraception to women—thereby thrusting the court back into a legal minefield. So instead, the court’s majority picked the argument behind door No. 2; it concluded that the Affordable Care Act, as enacted by Congress, provided the departments with the authority to voluntarily grant religious exemptions. As a result, instead of navigating a question that pit two values against each other, the court reached a far more narrow conclusion. The government, of its own accord, had exercised its legitimate authority to accommodate religion and therefore there was no need to figure out whether government was in fact required to do so.
This same instinct of avoidance wove its way into the court’s opinion last month in Bostock v. Clayton County, which addressed whether the federal prohibition against employment discrimination “on the basis of sex” also prohibited discrimination on the basis of sexual orientation and gender identity. Justice Gorsuch, writing on behalf of a 6-3 majority, answered the question in the affirmative. Adopting an approach that focused on the text of the statute, Gorsuch emphasized that to discriminate against someone because of their sexual orientation—to, for example, terminate someone’s employment because he is a man attracted to men—is to discriminate on the basis of sex, because a woman attracted to men would not have been so terminated.
Lurking in the background of the case were worries expressed by religious communities concerned that expanding the scope of employment discrimination rules would bring religious institutions into conflict with the LGBT community. Justice Alito filed a dissenting opinion sounding an alarm bell about the potential for future conflict. But the majority opinion pushed that question to the margins. Thus, the majority opinion in Bostock noted that religious institutions might have legitimate religious liberty defenses—either statutory or constitutional—against these expanded employment discrimination laws; thus, religious schools, for example, might not face liability for refusing to employ members of the LGBT community in positions of religious import. But those issues, the court explained, are “questions for future cases”; as a result, there was no need to say more about how courts should balance the competing needs of religious institutions and the LGBT community quite yet.
As Little Sisters of the Poor and Bostock demonstrate, the justices are more than willing to focus on the case directly before the court. Where decisions touch on future culture-war controversies—clashes between religious liberty and other deeply held social values—the court’s method in recent weeks has been to push those issues into the future.
It is true that this approach can’t last indefinitely. Indeed, there are already cases on the court’s docket that may thrust the court into these far more intractable legal conflicts. But at least for the moment—in the midst of a global pandemic and a deeply polarizing presidential election on the horizon—the court has deftly side-stepped these big-ticket religious liberty claims.
Instead, cases where the court has actually addressed the core church-state claims have largely been refracted through the prism of discrimination. The most obvious example of the phenomenon is the court’s late-June decision in Espinoza v. Montana Department of Revenue. At issue was a Montana program that granted a $150 tax credit for donations to nonprofits that provided scholarships to private schools. While the program initially applied to nonprofits that provided scholarships to both private religious and secular schools, the Montana Department of Revenue subsequently amended the program to exclude religious schools; the reason for the change was to ensure the program abided by a provision of the Montana state constitution that prohibited the state from funding—even indirectly—religious schools. When parents filed suit against Montana for excluding religious schools, the Montana Supreme Court struck down the whole program, holding that the Department of Revenue lacked authority to change the rules after the fact and the program, as written, violated the state constitution.
The Supreme Court, however, held that the Montana Supreme Court’s decision was unconstitutional. In a 5-4 decision authored by Chief Justice Roberts, the court held that excluding institutions from government funding programs based on their religious identity constituted a prohibited form of religious discrimination. In so doing, the court did keep the door open for excluding religious institutions from government funding programs when the money would be put toward specifically religious uses. Thus, if government funds were being used to build an active sanctuary in a house of worship or, as per a 2004 decision, to pursue a degree in “devotional theology,” states may still be able to exclude religion from government funding programs. But such leeway, explained the court, would not include states that try to exclude religious institutions based solely on their religious institutional identity. That sort of prohibited religious discrimination would include exclusion of religious schools from available government funding opportunities.
The current contours and future applications of this decision will likely be hotly contested in coming years. But for now, it’s worth noting the inner logic of the opinion. The opinion does not focus on the value of religion—or the relative value of religion as compared to other values. The court’s opinion easily fits into a broader societal moment where discrimination is rightly derided as unacceptable both politically and constitutionally. While it is true that advocates of a more robust separation of church and state chafe at the court’s opinion, the underlying principles of the court’s decision haven’t triggered the kind of broad backlash typical when religious liberty tangles with women’s health or LGBT rights.
This sort of opinion also has another important consequence. Focusing on religious discrimination shifts the court’s attention to minority faith communities—communities whose smaller numbers and more limited political power make them more likely targets of this sort of disparate treatment. In Espinoza, this shift was not particularly discernable in the majority opinion. But Justice Alito, this time in a concurring opinion, spent considerable effort detailing the long discriminatory anti-Catholic history of state constitutional provisions that prohibited government funding of religious schools. In telling this shameful history, Alito also seized the opportunity to reference numerous amicus briefs—that is, “friend of the court” briefs filed by third parties with an interest in the case—to highlight a widespread concern shared across faith communities and religious institutions: that it is unacceptable for laws, purported to be of discriminatory origin, to still be on the books in the majority of states. He further pressed this focus by noting that this Catholic commitment to religious schooling—the target of religious discrimination in the 19th century—was also shared by the Jewish community, tying these two religious minorities together in the fight against religious bigotry.
This link between religious discrimination and religious minorities also stood at the heart of the court’s July 8 decision in Our Lady of Guadalupe School v. Morrissey-Berru. At stake were claims of two Catholic elementary school teachers alleging that they were terminated in violation of federal anti-discrimination laws—in one case, the teacher alleged termination based on age, and in the other, based on a cancer diagnosis. In both cases, the Catholic school argued that they were shielded from liability by a constitutional doctrine—known as the “ministerial exception”—which prohibits courts from regulating the decision to hire and fire ministers. Lower courts have long applied this doctrine and the Supreme Court unanimously supported the ministerial exception back in 2012.
Underlying the “ministerial exception” is a recognition that religious leaders represent the “life blood” of religious communities because they interpret religious doctrine, embody religious ideals, and shape religious values. Thus, the First Amendment prohibits government from regulating the decision to hire and fire religious leaders. Indeed, to do otherwise would be to grant civil authorities the capacity to manipulate the foundations of religious communities. These basic constitutional principles enjoy relatively broad consensus.
What remained contested in Our Lady of Guadalupe was the question of who qualified as a “minister.” The federal Court of Appeals that previously heard these cases found in favor of the teachers—not because it disputed the underlying constitutional rules, but because it concluded that the teachers were not religious leaders. Like many elementary school teachers, both of the plaintiffs taught a range of subjects—both secular and religious; they also had responsibilities of varying degrees with respect to supervising student prayer services.
The key factor for the Ninth Circuit was the fact that neither teacher was ordained as a minister, nor did they have the religious training typical to a minister. And without the title or training of a minister, the court ruled, they could not be included under the umbrella of religious leaders covered by the ministerial exception.
The Supreme Court, by a 7-2 margin, disagreed. Much of the court’s opinion focused on the fact that there was no rigid constitutional formula for determining who was and wasn’t a minister. Courts should take a range of considerations into account and where teachers—like those in the cases before the court—had significant religious job responsibilities, they qualified as the kind of religious leaders whose employment relationship lies beyond the regulatory authority of the state. In the court’s view, religious institutions—and most notably religious schools—must retain the power to terminate a religious leader when deemed necessary; otherwise, “a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith.”
The court could certainly have left it at that, focusing on the need for religious communities to retain control over who leads them. But the court’s opinion went much further. It emphasized the reason why there could be no rigid formula for religious leadership—certainly none tied to the title of minister. To do so, explained the court, would “constitute impermissible discrimination.”
The court reasoned that there is no one model for how religious communities are structured. Different faith communities build different sorts of institutions and different sorts of communal infrastructure, and as a result establish different forms of religious leadership. For that reason, the court explained, you can’t try to define who is a religious leader “simply by including positions that are thought to be the counterparts of a ‘minister,’ such as priests, nuns, rabbis, and imams.” Citing multiple amicus briefs filed by individuals and institutions from minority faith communities, the court noted how, for example, Jewish communities and Muslim communities have alternative visions for who is and isn’t a religious leader.
Perhaps the most notable aspect of the court’s opinion was the attention paid to the centrality of religious education in many faith communities. To privilege ministerial forms of leadership over educational forms of leadership, the court reasoned, would distort constitutional protections in ways that ultimately discriminated against religious communities that prioritized pedagogy over the pulpit.
Not surprisingly, the court once again turned to minority faith communities in making this point, describing the central role of religious education in Jewish, Muslim, and Mormon communities. Even a reference to Maimonides made its way into the court’s decision as part of an attempt to reiterate how the Jewish faith invests teachers with the most sacred of theological responsibilities. To narrow the scope of who the court sees as a religious leader based on titles and training typical of ministers is problematic not simply because it constrains the authority of religious communities; it is problematic because it identifies a vision of religious community and leadership from more dominant religions and superimposes it on minority faiths.
In these ways, this recent slate of church-state decisions highlights the Court’s heightened focus on religious liberty claims that can be translated into the language and logic of religious discrimination. In Little Sisters of the Poor and Bostock, the court kept on its blinders and left for another day the clashes over values that remain on religious liberty’s horizon. By contrast, in Espinoza and Our Lady of Guadalupe, the court pushed forward, leaning on the logic of religious discrimination to vindicate religious liberty claims.
For those increasingly concerned with the targeting of religious groups and religious interests for worse treatment, this focus is a cause for celebration. It is those that are least likely to win out in the political sphere that need recourse to the judiciary and its ability to protect our collective constitutional rights. Whether the court will, in its next round of decisions, venture further out into cases pitting religious liberty against other important social values remains to be seen.
Michael A. Helfand is professor of law and associate dean at Pepperdine Caruso School of Law, visiting professor at Yale Law School, and fellow at the Shalom Hartman Institute.