Litigation Update: COVID-19 and the Supreme Court’s Religious Liberty Cases

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on April 7, 2020 during a live teleforum conference call held exclusively for Federalist Society members.

 

Dean Reuter:  Welcome to The Federalist Society’s Practice Group teleforum conference call, as today we discuss the Religious Liberties cases in the U.S. Supreme Court. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      We're very pleased to welcome back a return guest to teleforum, Luke Goodrich. He's Vice President and Senior Counsel at Becket. Luke Goodrich, the floor is yours.

 

Luke Goodrich:  Thanks Dean. Thanks for having me today. Thank you all for joining. And the purpose of today's call is quite simple. I'll provide an overview of the Religious Liberty Cases that are currently on the Supreme Court's docket and then summarize how, if at all, those cases are being affected by the COVID-19 pandemic.

 

      So as not to bury the lead, I'll just say upfront. In thumbnail, there are six significant cases on the Supreme Court's docket right now involving Religious Liberty. Two of those cases have already been argued and are awaiting decision. And we expect those cases will likely be decided in the ordinary course. Three of those cases have been briefed and were scheduled for oral argument, but oral argument has been postponed. And those are the cases where the timing has been thrown up into the air by the pandemic. And then the last case cert was only granted in January. It would ordinarily be heard in the Fall of 2020. And it's unclear whether the pandemic is going to have any effect on that one.

 

      So let me just jump right in. I'll summarize the six cases and reiterate how they're being affected, if at all, by the pandemic. So let's start with the two cases that have already been argued and are awaiting decision. First up, you have actually a trio of cases. Zarda v. Altitude Express, Bostock v. Clayton County, Georgia, and Harris Funeral Homes v. EEOC. And in these cases, you have plaintiffs who allege that they lost their job because of their sexual orientation or gender identity. And they have sued alleging employment discrimination under Title VII.

 

      Title VII,  by its terms, does not prohibit discrimination based on sexual orientation or gender identity. But it does prohibit discrimination based on sex. And so the question in these cases is whether firing someone because of their sexual orientation or gender identity is actually a form of discrimination based on sex. This is not a religious liberty case, per se, but it does have a very significant impact on religious organizations because there are tens of thousands of religious organizations across the country that have long standing beliefs about human sexuality, and they often expect their employees to live in accordance with those beliefs. So they may expect their employees to refrain from sex outside traditional marriage or expect their employees to live in accordance with their biological sex.

 

      If Title VII is interpreted the way it was for the 40 to 50 years, these religious organizations are all in the clear. But, if the Supreme Court agrees with the plaintiffs in these cases, that discrimination based on sexual orientation or gender identity is actionable under Title VII as a form of sex discrimination, then all of these religious organizations will suddenly be exposed to new lawsuits and new potential liability. And that'll place tremendous pressure on other doctrines, such as Title VII's religious exemption or the ministerial exception.

 

      As I mentioned, this trio of cases, Zarda, Bostock, and Harris, they have been fully briefed. They were argued on October 8th, and they are currently awaiting decision. And in normal times, you would have decisions in all these cases by the end of June. And the Court has given no indication that it's going to slow the pace of deciding cases that have already been argued. It issued two opinions yesterday. And so, at least for now, we're expecting a decision in Zarda, Bostock, and Harris, really any day, and at least by the end of June.

 

      Second big case that's already been argued is Espinoza v. Montana Department of Revenue. This is a case where the State of Montana enacted a scholarship program for K through 12 students. The way it worked is pretty simple. Any citizen could donate up to $150 to a private non-profit scholarship organization and you get a dollar for dollar reduction of your income tax liability. And then the scholarship organizations could use the money that was donated to provide scholarships for children to attend any qualified private school. It could be a religious private school or a secular private school.

 

      So bottom line, this is a program that helps low income families send their children to private schools. This program is perfectly permissible under the federal Constitution, under Zelman v. Simmons-Harris. But the issue here is that Montana has a state constitutional amendment that goes further than the federal Establishment Clause, prohibits the government from making "any direct or indirect appropriation for any sectarian purpose." 

 

      There are a number of states that have, what are called, Blaine Amendments. And these were enacted back in the 1800s during a time of rampant anti-Catholic bigotry. And so the question in Espinoza v. Montana Department of Revenue is whether these old anti-Catholic Blaine Amendments are, themselves, unconstitutional, and whether religious organizations need to be treated on the same terms as all other organizations when it comes to widely available public benefit programs. Espinoza was fully briefed. It was argued on January 22nd. And like Zarda, Harris, and Bostock, we're simply waiting for a decision which could come any day. And we expect, at least, before the end of June. So those are the two cases that have already been briefed and argued and, at least for now, are not being affected by the pandemic.

 

      Now let's turn to the three cases that were scheduled for oral argument and are being affected by the pandemic. The first of those three cases, it's called Tanzin v. Tanvir. This is a case where three Muslim men were put on the no-fly list for declining to serve as informants on their own religious communities. Then, when they sued, they were promptly removed from the no-fly list. And they've sued the FBI agents who put them on the list, in their individual capacities for damages. And the question in the case is whether the Religious Freedom Restoration Act authorizes suits against federal officials in their individual capacities for damages. That case has been fully briefed. Argument was supposed to take place on March 24th, but that argument has been postponed.

 

      Second of this set of three cases that have been postponed is actually a pair of cases. These are Becket Fund cases, where my firm is representing the petitioners. One is called Our Lady of Guadalupe School v. Morrissey-Berru. The other is called Saint James School v. Biel. Both of these cases involve Catholic schools who let go of fifth grade teachers  who were responsible for teaching religion to their students, teaching the Catholic faith to their students, leading them in prayer, and leading them in worship. Those teachers have sued for employment discrimination. And the question in the case is whether those lawsuits are barred by the ministerial exception, as the Supreme Court unanimously recognized in Hosanna-Tabor v. EEOC in 2012. So these are very important cases about the freedom of religious organizations to choose who will teach the faith to the next generation. Those cases were scheduled for oral argument on April 1st and they have also been postponed.

           

      And then the third of cases that have been postponed, this is another Becket Fund case, Little Sisters of the Poor v. Pennsylvania. And most folks have probably heard of the Little Sisters of the Poor. They're an order of Catholic nuns who devote themselves, and their lives, to caring for the elderly poor. And they've been locked in litigation for over eight years now, starting back during the Obama administration, when pursuant to the Affordable Care Act, HHS issued a regulation that would require the Little Sisters of the Poor, and many other religious organizations, to use their own health insurance plans to provide their employees with access to contraception and abortion-causing drugs. 

 

      Little Sisters challenged that regulation under the Religious Freedom Restoration Act. They've already been up to the Supreme Court once. And the Supreme Court reversed a lower court ruling against them and basically sent the case back down, telling the federal government, surely there is a way to provide contraception without using Catholic nuns. So why don't you figure out some sort of compromise? After that, President Trump was elected, and the Trump administration has issued a very good regulation that protects ministries, like the Little Sisters of the Poor, from the contraception mandate.

 

      But several states, including Pennsylvania and California, have now sued the Trump Administration, sued the Little Sisters, over the new rule arguing that it's actually illegal under the Administrative Procedure Act, or under the Establishment Clause, or other federal laws, that it's illegal for the federal government to provide a religious exemption to the Little Sisters of the Poor.  The Third Circuit struck down the new rule, and so the Little Sisters and the federal government have appealed to the Supreme Court. That case was scheduled for oral argument on April 29th, but it too has been postponed.

 

      So all three of these cases, Tanvir v. Tanvin, the pair of ministerial exception cases led by Our Lady of Guadalupe School, and Little Sisters of the Poor have all been postponed. And the latest word from the Supreme Court was actually on Friday, when it postponed the Little Sisters of the Poor argument. The Court issued a press release, and it said that the Court will consider rescheduling some cases from the March and April sessions before the end of the term, if circumstances permit. And if circumstances won't permit argument before the end of the term, the Court said it will consider a range of scheduling options and other alternatives.

 

      So what this indicates, it looks like the Court is basically trying to leave all options on the table. Those would include, number one would be, argument later this spring, or in the summer with decision by the end of -- before October of 2020. Another option would be rescheduling some of these cases for oral argument next term. And a third possible option would be a decision on the papers without oral argument. So those are the three cases that are being most directly affected by the pandemic.

 

      The last case is also a Becket Fund case. This is Fulton v. City of Philadelphia. And we represent Catholic Social Services in the City of Philadelphia, which for over 100 years, has had a ministry where they recruit families to provide loving homes for foster children. And Philadelphia is the midst of a foster care crisis. They don't have enough families to care for children. And yet, Philadelphia has cut off its contract with Catholic Social Services and is threatening to shut down that ministry, solely because they place children only in the homes of married male/female couples.

 

      And in over 100 years, no same-sex couple has ever come to Catholic Social Services seeking their assistance in foster care. And if they ever did, there are over 20 other agencies, foster care agencies, in the City of Philadelphia, that provide that service to same-sex couples, and Catholic Social Services would refer them to those. So this is not a case about whether same-sex couples will be able to participate in foster care. They can and do. This is solely a case where the City of Philadelphia is trying to shut down a long-standing Catholic Ministry solely because of its religious beliefs about marriage. We've challenged that under the Free Exercise Clause and one of the questions presented also invites the Court to reconsider its decision in Employment Division v. Smith.

 

      So in this case, Fulton v. City of Philadelphia, cert was only just granted in January. And so, in the ordinary course, the case would be argued in October of 2020. And there's been no indication yet from the Court whether there will be any change in that schedule. Although, if some of the current cases in the current term are pushed into next term, you could imagine a possible delay in Fulton, as well.

 

      So there you have it. Those are the six big cases on the Court's docket. Two that have already been briefed and argued, and we could get a decision any day. Three where the timing has been thrown up into the air because of the coronavirus. And then the final case, which would ordinarily be heard next term, and it's unclear whether there will be any impact on the timing there. So just wanted to give you a brief overview of what's on the docket and what's up in the air. And with that, look forward to your questions.

 

Dean Reuter:  Let's turn to our first caller.

 

Caller 1:  Thank you. I have a question about logistics. You say that the Constitution has to wait for the Court to catch up with the technology. Every week for the last several weeks, I've had a weekly teleconference with my three children in different parts of the United States. Why can't the Court hear oral argument by teleconference?

 

Luke Goodrich:  Great question. The question is why can't the Court hear oral argument by teleconference. And in fact, there are a number of district courts and several federal circuit courts that have started hearing oral arguments and other types of hearings via teleconference. The Supreme Court, there's been no indication yet that the Court is going to head in that direction. I would be surprised if it would. It has never done that before. But if this goes on long enough, you could imagine pressure mounting for the Court to consider alternatives like that.

 

Dean Reuter:  Luke, this is Dean Reuter. I wonder if this issue is at all tied into the discussions that have been taking place in the past about televising Supreme Court oral arguments. It seems that if you start doing teleconference oral arguments, it makes it easier to take the next step to televising the arguments, all together. Do you see any connection there?

 

Luke Goodrich:  Yes, absolutely. I mean, this is a long-standing debate over whether the Supreme Court should televise its arguments or, at least, make live audio available of its arguments. The Justices have been very resistant to that, over time. Even though courts of appeals, quite often, do oral argument via video conference. And so, I think this is going to renew that debate and may add fuel to the fire of that debate. And again, I think it would take some pretty prolonged inability to do in-person oral argument for the Court to go in that direction. But it maybe something they take a closer look at, in light of the current circumstances.

 

Dean Reuter:  Very good. We've got three questions. Let's head in a new direction with a different caller.

 

Caller 2:  Yeah, I was wondering about in Fulton. When would the amicus briefs be due in support of the petitioner?

 

Luke Goodrich:  Yeah. I have that in my calendar. Let me pull that up and, Dean, maybe we can go to the next question while I pull up the answer to that and I'll circle back to that one.

 

Dean Reuter:  Of course.

 

Mark Walsh:  Hi. Mark Walsh. I cover the courts for Education League and the ABA Journal and contribute to SCOTUS Squad. And I'm working on various stories for all those outlets and covered most of your cases. So I guess I would ask maybe about your cases. Do you consider them in the more urgent category or are you fine with waiting however long the Court might need to wait to handle your pending cases, and assuming that the ones that have already been argued are going to get decided, but [inaudible 00:17:53]?

 

Luke Goodrich:  Great question. Thank you for that. So at Becket, we have three cases right now pending at the Supreme Court on the merits. And I would say two of those are not really affected by delay. The third one could be. So Our Lady of Guadalupe School v. Morrissey-Berru and Saint James School, that's the pair of ministerial exception cases, those are cases that were -- originally they were dismissed by the lower courts based on the ministerial exception. The Ninth Circuit reversed, and those are now at the Supreme Court. There's no urgency from our perspective to decide those cases. They were originally dismissed on summary judgment. And so if the Supreme Court rules our way, the dismissal will stand. If the Supreme Court goes the other way, those cases will be reinstated and progress in the ordinary course. But they're really just cases, primarily, about damages. So a bit of delay is not really going to affect those.

 

      The second case that we have on the merits is Little Sisters of the Poor v. Pennsylvania. And Little Sisters of the Poor are really, right now, at the forefront of the COVID-19 pandemic, caring for the elderly poor, and that has always been their desire, simply to return to their sole focus on caring for the elderly poor. Fortunately, throughout every stage of the litigation, we've been able to get the Little Sisters relief. And so they are not -- today there are no signs that are accumulating. There is, certainly, uncertainty around the degree which they might face a contraception mandate in the future. But they're not subject to that as we sit here today. And so a little bit of additional delay is not going to directly affect the Little Sisters.

 

      Our third case, though, Fulton v. City of Philadelphia, that is one where delay is harmful, because the City of Philadelphia has cut off all future placements, foster care placements, through Catholic Social Services. So there's a wind-down contract in place. Basically, if a child has already been placed in a home through Catholic Social Services, the City's not forbidding them from supporting that family and that child. So they're working with the children they've already placed. But there can be no new placements through Catholic Social Services. And so right now, Catholic Social Services has already had to start laying off employees.

 

      There are families, today, who are ready to take in new foster children, but they want to work with Catholic Social Services. And the City refuses to place children in those homes. So there's a direct effect on Catholic Social Services and it's employees; there's an effect on the families who are ready to welcome children with open arms; and there's an effect on children who can't get placements because the City of Philadelphia is refusing to work with Catholic Social Services. So that's one where delay could be harmful. But again, that's the case that would ordinarily be heard in October.

 

      The prior caller had asked about the timing of briefing in Fulton. And our opening brief in Fulton is due on May 27th, and that means that amicus briefs in support of our client are due on June 3rd, and we're very interested in talking with groups if they're interested in filing an amicus brief.

 

Dean Reuter:  While we get some more people on the line, perhaps I've got, I guess, a two-part question, Luke. Both reaching back to your opening remarks. You mentioned the possibility that the Court could decide cases without oral argument, and I think that was just a general notion. They do this, of course, and they might dismiss as improvidently granted or issue a per curiam opinion. Wondering if you've seen any cases, even beyond the Religious Liberties cases, where is there an increase in that method of deciding cases this term. I guess that's part one of my question.

 

      Part two is, the two cases you have mentioned that have already been argued, the Title VII cases and the Espinoza case, are they still within what you would have expected the decision-making window? Or is it your sense that a decision in those cases has been delayed to date?

 

Luke Goodrich:  Taking your second question first, about the two cases that have already been argued, so Zarda, Bostock, and Harris, they were argued October 8th. And those are big cases. So they tend to take longer. There's a likelihood of dissent. And so if they were decided right now, that would not be at all a surprise. The longer they linger, the more it looks like it's taking a bit longer than usual. But we're still well within the realm of what would be considered normal. So I don't think there's anything we can attribute to the pandemic, in terms of delay. Espinoza was argued January 22nd, and so that, too, is considered a big case, may prompt some dissent. And so there's no reason to have expected it to be decided already.

 

      Last I looked, the Court was a little bit behind its historical pace of issuing decisions. But I think it's probably too early to say whether that's attributable to the pandemic or to anything else. And then one possibility is that, with the cancellation of the March and the April oral arguments, you would think that would free up the Court to have a little bit of extra time to issue opinions, since it's not simultaneously prepping for oral argument. So I wouldn't, at all, be surprised if you see -- you know, the Court issued two decisions yesterday. I wouldn't be surprised if the Court caught up, pretty quickly, with its historic pace of issuing decisions.

 

      And then your first question about deciding cases without argument. It's not something I've looked into for historical precedent on how often the Court does that. But there have been quite a few instances where the Court has heard oral arguments through the summer, even into September, and issued decisions later. So I would expect that rescheduling cases for oral argument in the summer or fall, or even pushing them to next term, I would guess that that's the more likely course the Court is going to look at, rather than just deciding cases without argument. But as you can see from the Court's press release on Friday, it does seem to be keeping that option on the table.

 

Dean Reuter:  Very good. We've got two questions pending.

 

Caller 3:  This is Steve, we're at the D.C. Chapter. I'm wondering, concerning the bans and restrictions of mass gatherings, including religious services, are you aware of varying cases having at the circuit level, where the courts are on quarantine, they have lockdown restrictions, may have a new wrinkle on the outcome of these cases? About that, for example, the Court might request a new briefing, or the oral arguments would take a much different direction than it was probably going to go about three months ago?

 

Luke Goodrich:  Just so I'm clear on the question, is your question about pending litigation, challenging bans on mass gatherings?

 

Caller 3:  It's [inaudible 00:25:26] to really concern these new cases with the things that are happening right now. I'm wondering, if this is going to be a newer thing to consider in cases that are already pending, for example, at the Circuit level.

 

Luke Goodrich:  Got it. I get a new order every day from the different courts that we're practicing in, addressing how the pandemic is affecting the operation of courts. I had a case where the court was trying to schedule an in-person hearing, and then notified us that it's going to decide the motion on the papers. Federal circuit courts have scheduled oral argument to take place by video conference, and I think you'll see that used increasingly, as well.

 

      So prior callers asked about, would the Supreme Court ever go that direction? I don't see that happening anytime soon. It'll probably renew the debate about televising Supreme Court arguments. But I think you'll see lower courts, both circuit courts and district courts, basically scrambling and trying to find ways to keep cases moving along, whether that's by video conference or by deciding on the papers. Every court, I think, is going to take a different approach on that.

 

Dean Reuter:  And this is Dean. This allows me to make another commercial announcement on behalf of teleforum. And I'll mention the teleforum call we're having tomorrow, on religious freedom in a pandemic. It's sort of a broader look at the implications of the pandemic for religious freedom, with speakers Kim Colby and Mike Moreland So go ahead caller.

 

Arthur Schultz:  Yeah, my name is Arthur Schultz. And my question concerns your opinion about Lemon and it's continuing validity. The cases that are currently pending really don't involve Establishment Clause, or perhaps I'm wrong. The only one that possibly might is Fulton, but that's primarily a Free Exercise case, I believe. So is Lemon still a good test or not, in your opinion?

 

Luke Goodrich:  Thank you Arthur. A great question. So I think the Court's latest word on Lemon came last term in a case called American Legion v. American Humanist Association. And that case involved an almost 100-year-old Latin cross on government property, actually just outside the District of Columbia, in Bladensburg, Maryland. And there, you had six votes from the Justices. They didn't squarely overrule Lemon in all of its applications, but you had six Justices agreeing that Lemon is not a useful test for religious displays on government property. Becket has been litigating in this space for many years, arguing that Lemon is not a useful test, particularly with religious symbols.

 

      So this is a fantastic development to have six Justices agreeing with that position. And I think you're already seeing the fruits of American Legion in the lower courts, and in particular, in two recent Becket Fund cases. One, where we represented Lehigh County, Pennsylvania, which had a Latin cross on the county seal. An atheist organization challenged the county seal as a violation of the Establishment Clause. District Court said "We're bound by Lemon" I have to strike down this seal. And the Third Circuit, after American Legion, said "Lemon is no longer the controlling test, we have to look at history. And looking at history, this seal is constitutional."  So that was a great result.

 

      Second case, Becket Fund case, where we represented the City of Pensacola, Florida, which had a Latin cross on government property, in a park. It was erected on the eve of World War II.  So it had been up over 75 years. And again, an atheist group sued, challenging that cross as a violation of the Establishment Clause. And just a few weeks ago, the Eleventh Circuit issued its decision, post American Legion, also said Lemon is not the controlling test for religious symbols on government property, and looked to history instead, and said that the cross had to be allowed to stay.

 

      So American Legion is a great development. I think it drives the pencil just a little bit through, further into the heart of the Lemon zombie, particularly when it comes to religious symbols on government property. We'll have to wait and see what's left of Lemon in funding cases and other cases, outside the context of religious displays.

 

Dean Reuter:  Let's now check in with what could be the final question. Go ahead, caller.

 

Mark Walsh:  Mark Walsh, again. One quick -- one more quick question, kind of on logistics. You mentioned the briefing at the merits level. And it's my understanding, the Court has extended the deadlines for cert petitions, but not for merits filings. And it looks like, in Fulton, you requested -- your colleagues requested extension, and those are kind of routinely requested and granted for various reasons. But just the logistics of having so many cases in the Supreme Court for you and your colleagues and your organization, are you all working from home? Is it harder to think about all your different cases and deadlines and new ways of doing things in some courts, and so forth?

 

Luke Goodrich:  Yeah, great question Mark. And to answer, specifically, for Becket, we have closed down the D.C. office in accordance with the guidance of health officials there, so we are working from home. I don't think that necessarily puts us in a different position from a lot of other Americans. But, yeah, we're homeschooling our kids. We're writing briefs from home. We're using Zoom to connect with each other via video conference. We already have a number of attorneys who work outside the D.C. office. So we've been able to adjust pretty quickly, on the fly. It's an exciting time to have three merits cases at the Supreme Court, all very strong cases. And so the location of our work has changed, but the substance of it has not and we're full speed ahead.

 

Mark Walsh:  And just -- are deadlines an issue or not?

 

Luke Goodrich:  They're not any more of an issue now than they were before the pandemic, at least for us. In Fulton, we sought an extension for the opening brief. As you mentioned, that's really granted as a matter of course, particularly since there's no way the case would be argued until October, at the earliest. So the Court routinely grants those kinds of extensions. And there's also a really high level of interest, in terms of amici in that case. And so sometimes we ask for extensions, not because we need it ourself, but because there are a lot of amici who are trying to get familiar with the case and want to be able to weigh in. So that's a factor, as well.

 

Dean Reuter:  We do have some time left. We've got another question on the board.

 

Bob Fitzpatrick:  It's Bob Fitzpatrick, here in D.C. Going back to your discussion about Zarda, Bostock, and Harris, which I call the because-of clause cases dealing with Title VII.  Assume the Court holds that sex orientation is somehow encompassed within the word sex, so it's prohibited by Title VII.  And let's assume we have a janitor suing the ministerial exemptions of the board. Doesn't the religious exemption of the courts construed it broadly enough to cover sex orientation if the employer is a religious institution, within the meaning of the exemption, and it has a, let's call it a lifestyle prohibition about its employees being other than straight. Is that issue filtering around? Or is that issue decided?

 

Luke Goodrich:  Yeah, that's a great question, very important question, and the short answer is, it is still filtering around. It is being litigated. Just by way of example, right now, we at Becket are representing a Catholic Archdiocese that has been sued by former employees who entered same-sex unions in violation of their employment contracts, and in violation of Catholic teaching, and are suing for discrimination. And so in all these cases, there are multiple doctrines at play.

 

      There is the ministerial exception, which is the First Amendment doctrine that protects the ability of churches to choose those who perform important religious functions. And that's what's at issue in Our Lady of Guadalupe School and Saint James School, but as you mentioned, not all the cases involved ministers. It might be a janitor, somebody who would not be considered a minister under the ministerial exception.

 

      And then you have a number of other doctrines that come into play. You mentioned Title VII's Religious Employer Exemption. And this is a provision in Title VII that says this subchapter, namely Title VII, shall not apply to a religious organization with respect to the hiring of individuals of a particular religion for the carrying out of the work of that organization. And so what religious organizations argue in these cases is that hiring persons of a particular religion means not just persons who say they're Catholic, or say they're affiliated with your religion. But religion also includes your observances and practices. And so we're only going to hire people who are Catholic and who actually live in accordance with Catholic teaching.

 

      And there's some really strong textual support in Title VII for that interpretation of the religious exemption. And a number of courts have gone that way. Maybe the leading case is called Ursuline Academy v. Curay-Cramer out of the Third Circuit, which was another Becket Fund case. But I would say it's not been completely uniform.

 

      Some courts have attempted to interpret Title VII's religious exemption narrowly. And there's some language out there suggesting that it only bars claims for religious discrimination. So it wouldn't bar claims for sex discrimination. So that's an issue that's currently being litigated. There are also some other constitutional arguments you can make. Like, even if Title VII religious exemption is construed narrowly, and you can't invoke the ministerial exception, you can invoke the doctrine of religious autonomy.

 

      You can invoke the doctrine of expressive association, under Boy Scouts v. Dale. So these are all issues that are continuing to be litigated in the lower courts and will be significant, no matter how Zarda, Harris, and Bostock are decided by the Supreme Court.

 

Dean Reuter:  Very good. Looks like we do have another question. So let's carry on.

 

Paul Strand:  Yeah, this is Paul Strand with CBN News. About those two cases. I'm wondering, is it just about money to be paid now? Or is the employment of the two teachers also on the line? Would the schools, maybe, have to hire the teachers back?

 

Luke Goodrich:  I think you're asking about Our Lady of Guadalupe School and Saint James School. And lurking in the background of all the ministerial exception cases is that issue of reinstatement. Because reinstatement is a remedy under Title VII and other federal employment discrimination laws. And so that's one of the main things, I think, that drove the Supreme Court's opinion in the Hosanna Tabor case in 2012, where the Court first recognized the ministerial exception, is that if you didn't have the ministerial exception, you could have courts issuing orders requiring religious schools to reinstate religious teachers. 

 

      And so you have the government appointing people who are teaching religion to the next generation. And in Our Lady of Guadalupe and Saint James, I don't think the teachers have asked for reinstatement. I think they've asked solely for money damages. But money damages really are just a monetary award in lieu of reinstatement. And it's basically the government penalizing the religious group and saying, "You should have kept this person as a religion teacher." So these cases involve only damages, but the issue of reinstatement is certainly at play, at least in the atmospherics.

 

Dean Reuter:  Well, Luke Goodrich, it would appear we've seen our final question, or heard our final question for this call. Let me give you a minute or two to wrap up, if you've got anything by way of concluding remarks.

 

Luke Goodrich:  Great. Well, thank you for having me. It is a busy time at the Supreme Court. Six very significant cases on the Court's docket right now. And the pandemic is affecting the timing of at least three of those cases. But we're hopeful that things will get back to normal fairly soon and the work of the Supreme Court, and certainly Becket's work, is continuing at pace.

 

      I'd just encourage folks, if you want to keep updated, you can find out about Becket's cases at becketlaw.org. And also if you'll allow me just a moment of self-promotion, I recently published a book in religious freedom called Free to Believe: The Battle of Religious Liberty in America. It actually covers all of the issues that we've been discussing in these cases today. And you can find that wherever books are sold. So thanks again for having me, Dean. And thanks everyone for your attention. And thanks for your excellent questions.

 

Dean Reuter:  Well, Luke Goodrich, before I let you go, can you give me the title of that book again to our audience?

 

Luke Goodrich:  Sure. Glad. Free to Believe: The Battle of Religious Liberty in America.

 

Dean Reuter:  Available at bookstores everywhere, and of course in this era, online. So thank you very much, Luke Goodrich. This has been very elucidating. I certainly appreciate your time and your comments. Good luck to you going forward. I want to thank our audience, as well, for dialing in and for their thoughtful questions. We are adjourned. Thank you very much everyone.

 

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