The Roberts Court Attempts a Compromise

In the October 2019 Term that ended last week, the Supreme Court decided a handful of cases with implications for religious liberty: Bostock, the Title VII employment discrimination case; Espinoza, the Blaine Amendment case; Our Lady of Guadalupe School, the ministerial exception case; and Little Sisters of the Poor, the latest contraception mandate case. In one way or another, the cases reflect the wider cultural conflict between progressives and the traditionally religious on the meaning and consequences of equality—especially with respect to sexuality and gender. Taken together, they suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent. 

Most Americans endorse equality, of course. But what does equality mean, exactly, and what does it require in different contexts? Progressives endorse an expanding concept of equality that covers new understandings of sexuality and gender. Among elite opinion-makers, the consensus is that drawing distinctions based on sexual orientation or transgender status amounts to immoral discrimination the state should stamp out. By contrast, the traditionally religious do not believe that a commitment to equality requires accepting the new understandings. They wish to conduct their lives, teach what they believe to be true, and govern their institutions according to their convictions. They themselves assert a claim that sounds in equality. They maintain that the state must allow them to participate in public life on an equal basis with progressives, without the legal restrictions progressives inevitably wish to place on them. 

Debates about sexuality, gender, and equality often lurk in the background of the Court’s religious liberty cases, even when the cases do not address those topics expressly. That was certainly true this past Term. In Bostock v. Clayton County, the Court held by a vote of 6-3 that Title VII of the 1964 Civil Rights Act, which forbids employment discrimination based on “sex,” covers homosexual and transgender status. Justice Gorsuch wrote the majority opinion, which Chief Justice Roberts joined, along with the four progressive Justices: Ginsburg, Breyer, Sotomayor, and Kagan. 

Gorsuch’s reading of Title VII was aggressive, to put it mildly, and conservatives have correctly criticized the odd sort of “textualism” that could lead to this result. But I do not wish to focus on statutory interpretation here. As Justice Alito explained in dissent, Bostock has obvious implications for the traditionally religious. Does the decision mean that religious employers must set aside their objections to homosexual conduct and transgenderism when hiring and discharging staff? What about religious schools and universities subject to Title IX, which, like Title VII, forbids discrimination based on “sex”? Could a religious university legally refuse to allow transgender women to compete in women’s sports? 

Gorsuch conceded that questions like these might merit “careful consideration,” but brushed them aside as premature. The employers in Bostock had not claimed to act from religious conviction, so the Court need not address the subject. The Court would address any conflicts between anti-discrimination laws and religious liberty as they arose in future cases. Besides, he noted, other statutes—including the Religious Freedom Restoration Act (RFRA)—and constitutional doctrines like the ministerial exception already afforded protection to religious believers. 

Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. Take Espinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation. 

The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.  

Our Lady of Guadalupe School v. Morrisey-Berru, the ministerial exception case, likewise demonstrates the Court’s willingness to allow the traditionally religious some autonomy in governing their own institutions. In the Hosanna-Tabor case eight years ago, the Court unanimously held that, when it comes to a religious institution’s employment of “ministers,” the Constitution requires an exception to the anti-discrimination laws. The state cannot interfere with a religious institution’s employment of the people it chooses as its leaders and teachers, even for the sake of preventing otherwise illegal discrimination. The exception follows from the principle of church autonomy under the First Amendment’s Religion Clauses. 

Our Lady of Guadalupe School, in which teachers at Catholic schools claimed to be the victims of illegal age and disability discrimination, was a straightforward application of Hosanna-Tabor. In a decision by Justice Alito, the Court reaffirmed the ministerial exception and held that it covers church personnel regardless of their formal titles, as long as the personnel perform functions the exception is meant to shield from state control: leading the institution, teaching, and carrying out the institution’s religious mission. Notably, the vote in favor of the ministerial exception was 7-2. Two progressive Justices, Breyer and Kagan, joined Alito’s opinion along with the Court’s conservatives—not a unanimous ruling like Hosanna-Tabor, but still a solid majority. 

Little Sisters of the Poor v. Pennsylvania, the latest in the long-running contraception mandate litigation, dates back almost a decade and has been at the Court twice before. The litigation began when the Obama Administration issued regulations under the Affordable Care Act (ACA) requiring employers to provide cost-free contraceptives in their employee health plans. In Burwell v. Hobby Lobby (2014), the Court ruled that RFRA required the government to grant an accommodation to closely held, for-profit corporations that objected to the mandate for religious reasons. Subsequently, in Zubik v. Burwell (2016), the Court remanded for the government to try to reach a settlement with religious non-profit corporations that also objected to the mandate. 

The election of 2016 intervened, and the Trump Administration adopted new rules that exempted employers with “religious” and “moral” objections from having to comply with the mandate. The Commonwealth of Pennsylvania then sued to block enforcement of the new rules, arguing, among other things, that the Trump Administration lacked authority under the ACA to issue them. The lower courts agreed, but in its decision this month, the Supreme Court reversed and ruled, 7-2, that the Trump Administration had authority under the ACA to issue the new rules. 

We should not make too much of this latest decision regarding the Little Sisters. The Court remanded the case to the lower courts, where argument will resume with respect to complicated questions under the Administrative Procedure Act, a statute to which only hapless D.C. lawyers normally need pay attention. Meanwhile, former Vice President Biden has said that if elected he will rescind the Trump regulations, which would complicate matters still further. The contraception mandate litigation, the Jarndyce v. Jarndyce of church-state cases, seems destined to continue. Nonetheless, a solid majority of the Court was willing to rule in a way that, for now, allows the traditionally religious to avoid the mandate. 

This Term, both progressives and the traditionally religious can claim victories in the debate over sexuality, gender, and equality. And perhaps that is just what the Court hoped to achieve, a modus vivendi in our culture wars. Of course, some might wonder whether the Court should be in the business of resolving our deepest cultural and political divisions. But as Tocqueville saw almost 200 years ago, in America, political questions inevitably become judicial ones. At least with respect to some of our current divisions, the Roberts Court seems confident it can devise a workable compromise.  

Mark L. Movsesian co-directs the Tradition Project at the St. John’s Center for Law and Religion.

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