Protesters at the Supreme Court in March 2020. (Robin Bravender/States Newsroom)
I tell my students in Constitutional Law that there are historical eras in which a Supreme Court majority is determined to change an entire area of constitutional doctrine.
In such a moment, the court will rarely grant review in any case that would hinder that goal. Thus, civil rights claimants during the Warren Court era rarely lost cases at the Supreme Court level. The court just did not grant review in cases in which such parties were not likely to win.
We are in such a moment now with regard to religious liberty. Religious parties are just not likely to lose in the Supreme Court.
The last few weeks of this past term illustrate this point. Since June 30, religious parties won three important cases, losing only in the attempt to procure emergency relief against COVID-19 restrictions—a unique and probably unrepeatable substantive and procedural context. And even that decision was only 5-4 against the church.
In two cases, private religious schools won the right to participate in a state scholarship program and to fire teachers of religion without having to litigate discrimination claims.
In the third case, Little Sisters of the Poor v. Pennsylvania, the court upheld Trump administration rules granting exemption to any employer who objects on religious grounds, and to a smaller group of employers who object on moral grounds, to covering contraception services in company healthcare plans, which is otherwise required coverage under Obamacare.
The case was technically remanded for further review, but the survival of the rules now seems assured.
Thus far, decisions by the pro-religion court majority, while controversial, have either not imposed much of a burden on others or have seemed reasonable accommodations in a nation founded on the protection of religious liberty.
Thus, when the court protected a cake shop owner in 2018 from having to bake a cake for a same-sex wedding, the couple could procure a cake somewhere else. The decision on school scholarships just treats private religious schools the same as all other schools. Limiting the reach of discrimination laws is a burden on others, but, given the extreme sensitivity of deciding who teaches religion, may be necessary.
Even the Little Sisters case, although widely denounced, seems on the surface easily reversed. Joe Biden has already promised a new and more limited exemption rule if he is elected President.
But looks in this context are deceiving. Little Sisters is a constitutional train wreck waiting to happen.
Justice Samuel Alito’s concurrence in the case, joined by Justice Neil Gorsuch, already attempted to head Biden off. Something very much like the Trump administration rule is required by another statute, he argued, the Religious Freedom Restoration Act (RFRA), which requires extraordinary justification whenever the federal government substantially burdens religious practice.
Given the references to RFRA in Justice Clarence Thomas’s majority opinion, it is very likely a majority of Justices agree with Justice Alito.
Of course, statutes like RFRA can be amended, or even repealed. A new Democratic Congress elected in 2020 could do exactly that.
Justice Ruth Bader Ginsburg’s dissent, joined by Justice Sonia Sotomayor, anticipated such an eventuality, noting that all the parties in the case agreed that the Trump Administration rules are not required by the Free Exercise Clause of the Constitution.
Ginsburg was slyly attempting to strengthen a 1990 precedent, Employment Division v. Smith, written surprisingly enough by the late Justice Antonin Scalia, which greatly limited the reach of the Free Exercise Clause in instances of generally applicable laws, like the contraception mandate.
Not so fast, Thomas warned in a footnote to the the majority opinion: “A constitutional claim is not presented in these cases, and we express no view on the merits of that question.” Nobody should bet on the long-term health of the Smith decision or its reach.
We are now in an absurd and untenable situation. Employers, including for-profit corporations, may now be entitled to restrict any aspect of healthcare coverage that offends their religious beliefs. Even if religious protection is eventually denied to publicly-traded corporations, this is a lot of employers.
Most people are going to feel that employee medical care should not be held hostage to whatever religious whims an employer happens to have.
The Supreme Court has been clear that the reasonableness of religious beliefs can never be adjudicated in court. Just wait until some Christian Scientist decides his employees will not have medical insurance at all.
An increasingly secular public is not going to put up with this. Most employees, even in many religious institutions, have not signed up to comply with the employer’s religious beliefs, but only to have a job. And it is no answer to tell a nurse not to work in a religious hospital—they comprise a fair chunk of that market.
One way or another, the non-church going majority is going to win this fight. The Supreme Court never stands in the way of a determined majority for long.
None of this conflict is necessary to protect religious liberty. Religious employers do not claim the right to control their employee’s medical care. They just want nothing to do with it.
We are in this situation only because of a historical accident. During World War II, wage controls led employers to compete for workers by offering better benefits. Our largely employer-based health insurance system emerged by happenstance, not by policy.
I have never supported universal healthcare. But the Little Sisters case, and the likelihood that it will lead to even more severe conflict between sincere religious employers and innocent employees, has changed my mind.
This is a conflict our already divided nation does not need. In the interests of social peace, and the long-term protection of religious liberty, the availability of medical care must be separated from employment. Religious voters should now join with progressives to end this conflict by enacting some form of universal healthcare.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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