Religious freedom & 3 recent Supreme Court decisions

(The Hill) - Among the trio of recent decisions, perhaps the most politically potent was the court’s 7-2 ruling to give certain employers more leeway to opt-out of paying for birth control, as is generally required under ObamaCare.

“The Supreme Court's decision to enable the Trump Administration’s brutal assault on women’s health, financial security and independence is a fundamental misreading of the statute,” Speaker Nancy Pelosi (D-Calif.) said in a statement. “The Affordable Care Act was explicitly designed to prevent discrimination against women and to ensure that women have access to preventive care, including contraception.”

In the Obama era, religious nonprofits could claim an exemption from contraceptive coverage. But legal challenges arose in response to the Trump administration’s move to expand eligibility to companies that voiced religious or moral objections.

Justice Clarence Thomas wrote for the majority, which comprised his fellow conservative justices, as well as two of its more liberal justices, Obama appointee Elena Kagan and Stephen Breyer. But the two more liberal justices made clear their vote in the case — Little Sisters of the Poor v. Pennsylvania — was not centered on religious liberty.

“Kagan and Breyer insisted that exemptions to the contraception mandate must stand only because the Executive Branch has broad power to create the exemptions, not because they agreed that the Little Sisters had a right to be exempt from the law,” said Franke, who serves as faculty director of Columbia University’s Law, Rights, and Religion Project and who joined an amicus brief opposing the expanded exemptions for religious employers.

But Kagan and Breyer expressed no such reservations when they joined the conservative wing to expand religious rights in a decision issued earlier Wednesday morning.

In that case, the court ruled that a pair of Los Angeles-area Catholic schools are immune from discrimination suits brought by two former teachers in a decision that expands the scope of protections for religious employers.

The 7-2 opinion, written by Justice Samuel Alito, broadens the so-called ministerial exception, a First Amendment doctrine that prohibits lawsuits by employees who are considered ministers due to the religious nature of their work.

The Supreme Court on Wednesday upheld the Trump administration's expansion of ObamaCare birth control exemptions for employers, marking the third time in about a week that the court has issued decisions broadening religious rights.

Two of the three cases were decided Wednesday by a 7-2 margin. Those majorities included two liberal justices — one of whom was nominated by former President Obama — as well as the court’s ideological center, Chief Justice John Roberts, suggesting religious protections enjoy durable support on the bench.

“The majority of justices on the Supreme Court have increasingly treated religious liberty rights as of greater importance and weight than other fundamental constitutional and civil rights,” said Katherine Franke, a law professor at Columbia University. “When they are asked to adjudicate conflicts between religious liberty and other fundamental rights, they have consistently ruled that religious liberty supersedes other rights.”

The White House and many conservatives, especially Christians, were buoyed by the recent decisions that further solidified legal protections for the nation’s faith-based communities, especially after the court dealt a series of blows to Republican causes this term.

“As the Supreme Court has previously stated, protecting the ability of people to worship and live according to the dictates of their conscience is part of ‘the best of our traditions,’” White House press secretary Kayleigh McEnany said Wednesday. “The Court’s decision today carries forward that noble tradition.”

But critics, who say the trend reflects the conservative court’s excessive regard for religious interests, fear Wednesday’s rulings will leave countless women without affordable contraception while further eroding the separation of church and state.

In a blistering dissent from the ObamaCare majority ruling, Justice Ruth Bader Ginsburg said the Trump administration’s far-reaching exemptions clash with Congress’s intent under the 2010 Affordable Care Act to subsidize female employees’ contraception.

“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,” Ginsburg wrote in her dissent, which was joined by Justice Sonia Sotomayor.

The ObamaCare contraception ruling came just minutes after the justices issued a ruling that expanded a First Amendment doctrine that insulates religious employers from discrimination suits brought by workers. It also came a week after the court ruled that religious schools cannot be excluded from state-backed private school scholarship programs.

Sotomayor, in dissent, said the majority decision "has no basis in law and strips thousands of schoolteachers of their legal protections."

The pair of decisions Wednesday came about a week after the Supreme Court issued another ruling that favored religious rights. That case concerned a Montana private school scholarship program that excluded religious schools from receiving aid.

The court said that making scholarships off-limits to parochial schools ran afoul of First Amendment protections for the free exercise of religion, which prohibits the government from treating religious and secular groups differently.

Roberts joined his fellow conservative justices to form a 5-4 majority in that case, Espinoza v. Montana Department of Revenue.

But two of the court’s more conservative justices — Thomas and Neil Gorsuch — made clear they would have gone even further than the majority to advance religious rights at the state level.

In a concurring opinion, Thomas argued that the court’s current treatment of the First Amendment’s Establishment Clause, which functions as a sort of counterweight to the free exercise clause, unduly interferes with states’ ability to support religious activities.

“So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer,” Thomas, joined by Gorsuch, wrote.

In another fiery dissent, Sotomayor accused the majority of using Montana’s defunct scholarship program to supply an overly broad reading of the free exercise clause in a decision she called “perverse.”

Franke, of Columbia University, said the majority decision in Espinoza reflected an interpretative approach that has been advanced by religious conservatives over the past two decades.

“This position seeks to frame a state's efforts to maintain a wall of separation between public and religious entities as a form of discrimination against religious entities,” she said.