- The Washington Times - Wednesday, July 8, 2020

The Supreme Court delivered two wins Wednesday to religious liberty advocates, siding with nuns challenging Obamacare’s contraceptive mandate and religious schools fending off workplace discrimination lawsuits.

In both cases, the majority of justices upheld the authority of the Trump administration and Catholic schools to take steps toward preventing interference with religious institutions’ sincerely held beliefs.

“Today’s decision is a poignant reminder of how the court has been rock-solid on religious liberty issues since 2005,” said Carrie Severino, chief counsel for the conservative Judicial Crisis Network, which backs President Trump’s judicial nominees.

But Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor said the high court went too far and dissented in both 7-2 rulings.

The two Democrat-appointed justices noted that thousands of employees at religious schools could lose reproductive care and legal protections against discrimination.



“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,” Justice Ginsburg wrote in one of the dissents.

Ms. Severino said the two liberal justices, had they prevailed, would have undermined the free exercise of religion.

“Their dissent is a striking reminder of the need for judges who are protective of the religious liberty guaranteed by the Constitution,” she said.

In one of the rulings, the Little Sisters of the Poor order of nuns won a substantial victory in its seven-year legal battle against the Affordable Care Act’s contraception mandate.

In the other decision, the justices held that teachers at schools run by churches can’t sue under federal employment discrimination laws. The ruling reinforced the right of Catholic schools to hire and fire based on consideration of religious instruction, not criteria set by the federal government.

“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,” Justice Samuel A. Alito Jr. wrote for the court.

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Supreme Court rejected a challenge to the Trump administration’s exemption of religious organizations from the Affordable Care Act’s mandate to treat contraception as basic medical care to be provided to all, free to the consumer but paid for by employers.

Under the Obama administration, churches were exempt from providing health care coverage that runs contrary to their teachings. In October 2017, the Trump administration expanded the exemptions to entities with religious or moral objections to contraception, including nonprofit and for-profit groups.

The Trump administration and Little Sisters of the Poor, a Catholic order that runs several religious entities such as retirement homes and care centers, sought the high court’s review after a lower court sided with Pennsylvania’s and New Jersey’s challenge to the expanded exemption.

The states argued that the federal government didn’t have the authority to make the expansion and in doing so violated the Administrative Procedure Act. The lower court sided with the states and issued a nationwide injunction, but the high court’s ruling reverses that.

“The plain language of the statute clearly allows the departments to create the preventive care standards, as well as the religious and moral exemptions,” Justice Clarence Thomas wrote for the court.

White House press secretary Kayleigh McEnany said the high court vindicated the “conscience rights of people with faith.”

“Since Day One, the Trump administration has sought to lift burdens on religious exercise for people of all faiths,” she said. “This administration will continue working to protect health care, including contraceptive health care, for the American people.”

She said women who can’t get contraceptive coverage because of their employers’ religious beliefs can access it through the administration’s Title X program, which gives federal funds to clinics across the nation for family planning.

“Ensuring that women receive the health care they need does not require banishing religious groups that refuse to surrender their beliefs from the public square,” Ms. McEnany added.

House Speaker Nancy Pelosi, California Democrat, viewed the ruling as an affront to health care rights. She said her chamber will continue to protect the Affordable Care Act and expand health care coverage for Americans.

“It is unconscionable that, in the middle of the worst global pandemic in modern history, the administration is focusing on denying basic health care to women that is essential for their health and financial security, instead of protecting lives and livelihoods,” she said.

Josh Shapiro, the attorney general of Pennsylvania, said he plans to continue his legal fight against the administration despite Wednesday’s ruling.

“We now return to the lower courts to address whether the exemptions are arbitrary and capricious. This fight is not over,” he said. “Nobody should get in between a woman and her doctor. No employer should deny their employees medicine based only on the employer’s personal beliefs.”

Justice Ginsburg, in her dissent, said 70,500 to 126,400 women could lose access to contraceptive care as a result of the ruling.

“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” Justice Ginsburg wrote.

In the other pair of cases — Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel — the justices evaluated whether courts could adjudicate workplace discrimination disputes by two elementary teachers fired from different Catholic schools in California.

The court said the lawsuits could not move forward because of the “ministerial exception,” a legal doctrine that bars ministers from suing churches and other religious institutions for employment discrimination.

The justices also enforced precedent that the First Amendment protects religious institutions from some workplace discrimination complaints.

One educator, Kristen Biel, said she was terminated because of age discrimination. The other teacher, Agnes Morrissey-Berru, said she was let go over her leave of absence for breast cancer treatment.

The cases tested whether religious employers can freely select their ministerial employees, as the employees must educate students according to the Catholic Church’s teachings.

“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,” Justice Alito wrote.

The ruling was a major win because education is a central part of the church’s mission, said a joint statement by Archbishop Thomas G. Wenski of Miami, chairman of the religious liberty committee for the U.S. Conference of Catholic Bishops, and Bishop Michael C. Barber of Oakland, California, who leads the education committee.

“As institutions carrying out a ministry of the Church, Catholic schools have a right, recognized by the Constitution, to select people who will perform ministry. The government has no authority to second-guess those ministerial decisions,” the two men said.

Justice Sotomayor’s dissent said thousands of employees could be left without legal protection from workplace discrimination.

Liberal organizations said the rulings allowed religious institutions to discriminate.

“Today, our nation’s highest court gave permission to religious institutions to play by their own rules and discriminate wherever they see fit. Religious belief should not be used as an excuse for bigotry, and should especially not excuse discrimination that would otherwise be illegal,” said Roy Speckhardt, executive director of the American Humanist Association.

⦁ Christopher Vondracek contributed to this report.

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