Religion has won a number of victories recently at the Supreme Court of the United States. None of them was good for women.
The Ministerial Exception
Women lost the ministerial exception case.
Agnes Morrissey-Berru and the late Kristen Biel were lay teachers at Catholic elementary schools. Morrissey-Berru was fired, and sued alleging age discrimination. Biel was fired, and sued alleging disabilities discrimination. Their employers had no religious reasons for dismissing them. “Indeed, it is ironic that Our Lady of Guadalupe School seeks complete immunity for age discrimination when its teacher handbook promised not to discriminate on that basis.” They were teachers, as the Ninth Circuit correctly ruled. That meant their lawsuits could proceed.
Their employers, however, called them ministers during the lawsuit. That is almost always a winning strategy for employers. The ministerial cases do not get to court once the employee is decreed to be a minister. The courts created the exception, allegedly in honor of the First Amendment. As a result, women are turned into ministers in court even when their employers do not ordain them to any ministerial status, and even though the employees never called themselves or thought of themselves as ministers.
The Supreme Court reversed the Ninth Circuit’s teachers ruling. Justice Samuel Alito, in a 7-2 opinion, concluded Morrissey-Berru and Biel were clearly ministers. Justice Clarence Thomas concurred with Justice Neil Gorsuch, arguing that civil courts must defer to the organizations’ assessment of who is a minister. Employers won. Women lost.
Why should you care? The opinion is a broad statement that religious organizations are not subject to the laws of the states or the United States. In other words, religious employers do not have to obey the antidiscrimination laws. If they violate them, and call the employee a minister, they win.
Today’s ministerial exception is very broad. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that she dissented because the majority’s “simplistic approach has no basis in law and strips thousands of school-teachers of their legal protections.” Past cases, dissenters Sotomayor and Ginsburg explained, had concluded, “Lay faculty, even those who teach religion at church-affiliated schools, are not ‘ministers.’” Moreover, they added, “Until today, no court had held that the ministerial exception applies with disputed facts like these and lay teachers like respondents, let alone at the summary-judgment stage.”
The dissenters accused the majority of “rewriting Hosanna-Tabor,” the Supreme Court’s ministerial exception case, and raising the “potential for abuse” that circuit courts had long warned against. Indeed, Sotomayor wrote, the Court’s “reasoning risks rendering almost every Catholic parishioner and parent in the Archdiocese of Los Angeles a Catholic minister.”
In her dissent, Sotomayor made an especially noteworthy point about the scope of the majority’s opinion:
Other sources tally over a hundred thousand secular teachers whose rights are at risk. … And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.
And all of them would lose their cases without ever getting a chance to get the facts of their cases before the court.
Imagine. Hundreds of thousands of employees cannot get into court because the elementary schools, universities, hospitals, camps and other religious organizations are protected from being sued for discrimination on the basis of race, gender, sexual orientation, age, disability, and anything else. This case was a big win for religion, and a loss for the women employees.
Contraception
Women lost the contraception case.
In the past, the Court had upheld religious exemptions from contraceptive insurance for employers who disagreed with it. The religious employers pushed for more. The Trump administration gave it to them. The administration expanded the exemption, making it available to many more religious and purportedly moral employers. More exemption for employers, less coverage for women.
The Court today gave discriminatory organizations another win. In a 7-2 opinion written by Justice Thomas, the Court upheld the Trump administration’s expansion of employers’ rights to deny contraceptive insurance to their employees. The new rule enabled more employers to deny coverage, thus setting up problems for women who completely lost their contraceptive insurance.
Justice Ginsburg wrote the dissent, joined again by Justice Sotomayor. She said the question of the case was “May the Government jettison an arrangement that promotes women workers’ well-being while accommodating employers’ religious tenets and, instead, defer entirely to employers’ religious beliefs, although that course harms women who do not share those beliefs?” Unfortunately for women, the majority said yes. Only the two dissenters said no.
Ginsburg used powerful language, just as Sotomayor had in Morrissey-Berru. As she said, “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.” The result of the majority’s decision? The result that “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”
Thousands of women lose their contraceptive services. They already lost their rights not to be discriminated against if they work in a religious organization. Victories for religion, but not for women.
Funding
Women lost this case too.
June 30 was not that long ago. Remember that day’s Espinoza v. Montana Department of Revenue opinion? It got a lot of attention for changing the Court’s First Amendment jurisprudence. In the past, the Court had been careful about not allowing the government to fund religion. Church and state were expected to be separate. In Espinoza, five justices—Chief Justice John Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh—changed the old approach to funding religion. Most shocking was Justice Thomas’s concurrence, joined by Justice Gorsuch, arguing that the Establishment Clause does not block the states’ choices about religion.
Chief Justice Roberts concluded “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Religious schools are entitled to government funding.
Conclusion
Putting together these three decisions, the government has to fund institutions that are not subject to the antidiscrimination laws and do not have to provide women’s health care coverage.
In other words, religious freedom is a world of permitted and funded discrimination.
That is not a good situation for women’s rights.
