The Supreme Court today handed down decisions in two important cases involving religious freedom. Considerations of religious freedom prevailed in both.
In Our Lady of Guadalupe School v. Morrisey-Berru, the issue was whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions. The Court ruled that the First Amendment does bar such adjudication. Two elementary school teachers who sued a Catholic school for employment discrimination will not be able to proceed. Justice Alito wrote the majority opinion.
In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the issue was whether the Trump administration had authority under Obamacare to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. The Court ruled that it did have that authority. Justice Thomas wrote the majority opinion.
These were the outcomes I expected. However, I was surprised that, in both cases, the vote was 7-2. Justices Breyer and Kagan broke ranks with their left-liberal colleagues to vote with the conservative Justices.
The rights of the religious have now prevailed in all three of the big Supreme Court cases in which they were at issue this term. The third case, Espinoza v. Montana Department of Revenue, was decided last week. There, the Court ruled that the Montana supreme court violated the Free Exercise Clause of the U.S. Constitution when it applied a state constitutional no-aid provision to bar religious schools from receiving scholarship money under a state tax-credit program. The vote in that case was 5-4.
Unfortunately, as Ed Whelan points out, the victory for the Little Sisters does not bring an end to the litigation. Although the Trump administration had the authority to provide the exemption to the Little Sisters and others, the losing parties can still argue that the rule granting the exemption is arbitrary and capricious, and thus violates the Administrative Procedure Act.
In a concurring opinion, which Justice Breyer joined, Justice Kagan questioned whether, on remand, the exemptions can survive administrative law’s demand for reasoned decisionmaking. In other words, the Little Sisters might still lose on some nit-picking technicality, like the kind Chief Justice Roberts and the four left-liberals seized upon to invalidate the rescission of DACA.
As Gilda Radner used to say, it’s always something.
UPDATE: Andy McCarthy has more on the Little Sisters of the Poor decision.
