Religious Liberty at the Supreme Court: The 2020 Term and Beyond

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This summer, the Supreme Court decided several high-profile religious liberty cases. In Espinoza v. Montana Department of Revenue, the Court held that religious schools cannot be excluded from generally-available funding programs on the basis of their religious identity. In Little Sisters of the Poor v. Pennsylvania, the Court upheld the Trump administration's exception to the contraception mandate, and in Our Lady of Guadalupe v. Morrissey-Berru, the Court affirmed that the First Amendment requires that religious schools enjoy significant autonomy in employment decisions, according to their religious missions. 

Mark Rienzi of the Becket Fund joins us to discuss these cases, preview the Supreme Court's fall term, and analyze the future of religious liberty at the Supreme Court. Professor William Saunders from The Catholic University of America will moderate the conversation.

Featuring:

Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School

William Saunders, Professor, The Catholic University of America; Director, Program in Human Rights, The Institute for Human Ecology

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum Conference call as this afternoon, July 23, 2020, we discuss "Religious Liberty at the Supreme Court: The 2020 Term and Beyond." My name is Nick Marr. I am Assistant Director of Practice Groups at The Federalist Society.

 

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

 

      First, I'll begin by introducing our Moderator, William Saunders. He's a Professor at the Catholic University of America, Director of the Program in Human Rights at the Institute for Human Ecology, and he's Chairman of our Religious Liberties Practice Group.

 

      Professor, I'll give the floor off to you in a moment to introduce our speaker. After we hear opening remarks and some discussion, we'll then go to audience questions. So be thinking of questions as we go and have those in mind for when we get to that portion of the call.

 

Thanks for being with us today, Professor. The floor is yours.  

 

Prof. William Saunders:  Thank you, Nick. I am glad to be with you to talk about this important subject, and it is a true privilege to introduce our primary speaker, who is Professor Mark Rienzi. He is a Professor at the Columbus School of Law at the Catholic University of America, and he is Director of its Center for Religious Liberty.

 

      A graduate of the Harvard Law School, he is also now a visiting professor at Harvard Law School. And if that weren't enough to keep him busy, he is also President of the Becket Fund for Religious Liberty. We're really glad to have you with us, Mark. The floor is yours.

 

Prof. Mark Rienzi:  Terrific. Thank you, Bill. Thank you, Nick. And thank you everybody for taking a few minutes to join us to talk about religious liberty in this year's Supreme Court term.

 

      What I'd like to do is -- there are really three big religious liberty decisions from this term. And what I'd like to do is just back up one step to something that happened at the end of the prior term and then go through those three cases and try to put them in perspective and at least give you some insights as to what I think is going on at the Court on religious liberty. And then I'd be happy to take questions after that.

 

      So if you recall last term—so this is the 2019 term that ended a year ago—there was one big religious liberty decision decided and that was the Bladensburg Cross case about the big World War I memorial cross in Maryland. And that was a decision that came out with a fairly broad 7-2 majority saying that that cross memorial did not violate the Establishment Clause.

 

      And in the course of that, the majority opinion talked about how the religion clauses of the Constitution, and this is a quote, "aim to foster a society in which people of all beliefs can live together harmoniously."

 

      And I think in many ways, what we saw in the 2020 term with the three big decisions that came down was really the Court's effort to read the religion clauses in a way that really does let them do the work of giving us a pass to live together in a society with people of different beliefs about not just minor things but also big important things.

 

And I think what we see in all of these cases, all of which were really wins for religious liberty, is the Court, often by a broad majority, often not with just a narrow 5-4, but the Court taking steps to interpret those clauses and interpret our religious civil rights laws to really preserve space for different religious groups to be themselves and to, for the most part, get to live out their religious beliefs as they see fit without interference from the government and without the government kicking them out of otherwise available programs and things like that simply because of their religious beliefs and who they are.

 

Ironically, the first time the Court started talking about religious liberty this term was not one of the religious liberty cases. They were talking about religious liberty a little bit earlier in June in the Title VII case, Bostock v. Clayton County. And there, the majority opinion by Justice Gorsuch but joined by Chief Justice Roberts and then Justices Kagan, Breyer, Sotomayor, and Ginsburg, that decision talked a little bit about religious liberty when the Court was interpreting Title VII. And so the Court interpreted Title VII to say that the ban on discrimination based on sex also applied to sexual orientation and gender identity discrimination.

 

But the Court there also took time to say that religious institutions may not have so much to fear from such a ruling, right? And they specifically pointed out that religious employers might have concerns about what these types of limitations would mean on how those groups continue to live out their religious convictions.

 

And the Court there said we are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution. That guarantee lies at the heart of our pluralistic society.

 

And then the Court went on to talk about how federal civil rights laws like RFRA, the Religious Freedom Restoration Act, actually act as a super statute in that they apply across all types of federal law. It's Congress pass one statute, but that statute tells federal officials implementing all the rest of the federal code how to behave. So in the course of that Title VII decision which came earlier in June, you see the Court talking a little bit about religious liberty in fairly broad tones, with fairly broad language. And it's not just the members of the Court generally considered more conservative who are talking about it this way, but it's a pretty broad spectrum of the Court doing it.

 

We then saw what I think was foreshadowed a little bit in that passage in Bostock starting to come true when we got the Court's decision in the Espinoza case. And so that's the first of our big three religious liberty cases from the term.

 

Espinoza is the case out of Montana about a Montana state tax credit case that allowed people to get tax credit for money that was put away to send children -- to provide scholarships for children who needed them to attend private schools, some of those private schools being religious.

 

The wrinkle there is not the typical Establishment Clause wrinkle that would've been familiar if you were watching the Court 15-20 years ago when the vouchers type cases were being decided. There was no question in this case that there was not an Establishment Clause problem at the federal level. The problem was a Montana State constitutional provision, often referred to as a Blaine Amendment, which forbade the expenditure of state funds to go to any school controlled by any religious group.

 

And the question in the case is is it permissible for Montana to shut down this program simply because some of the recipients might use their scholarship funds at a religious school? The Montana Supreme Court, on the way up, had decided that that was a problem, that it was impermissible under state law for anyone who gets funds to use them at a religious school, and therefore, the Montana Supreme Court had wiped out the whole program. They said nobody can have it because some of the recipients may use it at religious schools.

 

In Espinoza at the Supreme Court, the Court decided in a 5-4 decision written by Chief Justice Roberts that it is impermissible under the federal Constitution for Montana to have a rule like that. It is impermissible to exclude parents and students from a program -- from an otherwise publicly neutral and publicly available program, its impermissible to exclude them simply because they want to get a religious education for their children.

 

The Court said that Montana is not obligated to fund private schools. But once it does, it can't discriminate against the religious ones. And so there's not an obligation. States don't have to have a program like Montana had, but once they have one, they are not allowed to exclude schools simply for being religious.

 

Chief Justice Roberts also pointed out that these Blaine Amendments were born of bigotry. That's language that had appeared in earlier plurality opinion, but now it showed up in the majority's opinion. These types of laws are born of bigotry and that they should not be used or allowed to be used to discriminate against religious groups just because they are religious. And picking up on language from the decision in Trinity Lutheran a couple of years earlier, Chief Justice Roberts pointed out that excluding them just because they are religious is odious to our Constitution and impermissible under the Free Exercise Clause.

 

Espinoza's, to my mind, a very, very big and important win. And I should say it was brought to you by our friends at the Institute for Justice -- my friends at the Institute for Justice who did a great job winning that case. It's a very big win for religious liberty because there are, or at least were, Blaine Amendments or things like Blaine Amendments in about 36 or 37 states.

 

And those laws had been used in all manner of situations to stifle government partnership with religious entities or to be asserted as reasons why governments can't partner with religious entities to do all sorts of things from schooling to prisoner anti-recidivism and getting prisoners halfway houses after they got out of prison, helping them adjust back to life and society, food kitchens, and things like that. All types of things that you can imagine that the government sometimes does with other entities and sometimes religious entities are good at.

 

These types of laws have been a looming threat over those kinds of programs, and I think in many places, they've stopped those programs from coming into existence. And the Espinoza decision I think quite clearly says that type of legal structure where you exclude the religious groups because they're religious is not permissible. And so I think the case is really the death nail for Blaine Amendments, and I think it opens up the ability for religious groups and religious people to participate more broadly in society without this type of discrimination.

 

And just to get back to the original frame of allowing people and groups to exist harmoniously with different beliefs, I think Espinoza fits that quite well in that it's saying people are allowed to seek out a religious education for their children. It's not to say everybody wants it, many people don't but many people do, and that when people do and when organizations set out to provide it, the government is not going to be allowed to be in a position to kick them out of the program, to kick them out of the public square simply for that reason. And it's a decision that I should say applies much more broadly than just education. It certainly is a school choice decision, but it's more than that.

 

A little more than a week later, we had two more big religious liberty decisions, both litigated by my firm, the Becket Fund. The first was the Little Sisters of the Poor case. Little Sisters of the Poor case is the case that seems like it should always go away and never quite fully goes away. If you had told somebody in 2008 or -9 that you wanted to get contraceptives to every woman in America, I guarantee you that if you made a list of the best ways to do that, nobody would've said I need Catholic nuns to help me with that endeavor.

 

But somehow, through the magic of the Affordable Care Act, we ended up with a federal government mandate that even though it exempted lots of big corporations, even for reasons of just administrative convenience or political convenience, so that they could have grandfathered plans. It exempted lots of plans. It exempted lots of government plans. They refused to exempt the health plan of the Little Sisters of the Poor.

 

And so the Little Sisters had been to the Supreme Court a couple of times before. They had repeatedly won their cases when they had gone up before. They had always gotten protection from the Supreme Court when they needed it. And in 2017, the federal government finally got the message and did the right thing which is it said okay, if you cannot provide your employees with abortion inducing drugs and contraceptives and you got a religious or moral objection to that, we'll let you out of it.

 

And at the same time that the federal government did that, it also expanded Title X access to say that if you happen to be an employee of one of these relatively few religious employers who can't provide that benefit, we'll also let that contribute to your eligibility for Title X funding if it turns out that you need contraceptives that you can't afford.

 

That should've been the end of the fight, but after that, 20-something state attorneys general sued the federal government saying that it was illegal for the federal government to give a religious exemption to the Little Sisters of the Poor and other religious groups. So this is a very weird lawsuit.

 

Before it happened, I wouldn't have thought it was quite possible. But it was state governments going to federal court to ask a federal judge to order the federal government to order nuns to give out contraceptives, right. State governments going to federal court saying that the federal government should be forced to force somebody else to give out contraceptives.

 

It's a strange lawsuit. It's a real stretch of a lawsuit, like the states' claim for why they even belong in court is that the states have all of these programs that they can use to give out contraception. And their main argument was well, if the nuns don't give it out, then people might actually use the programs that we the states set up, and that might cost us some money.

 

The question in the case was whether it was lawful for the federal government to give the Little Sisters a religious exemption. The Supreme Court by a 7-2 margin decided yes, it was lawful that federal government, of course, has the authority to give a religious exemption to the federal government's own mandate.

 

In the majority opinion for the Court, Justice Thomas explained that the federal government is obligated to obey the Religious Freedom Restoration Act. It's obligated to obey RFRA. That may not seem like a groundbreaking thing for the Court to say, but two different courts of appeals had thought that was not quite clear. So the Court made clear that the federal government must obey RFRA when it's issuing rules.

 

The Court went so far as to say that it probably would've been arbitrary and capricious for the Court to issue a rule on this without thinking through the Little Sister's religious objection and the Court specifically said and when you think through that religious objection, you can't just discount it and say oh, well, the Sisters are far enough away from the abortion inducing drugs that they should feel okay with it, that that's not one of the choices for the government. The government is not allowed to second guess somebody else's moral or religious analysis. And so on that basis, the Court said that the government did the right thing in considering religion and that it was perfectly permissible for them to give a religious exemption.

 

Justice Kagan and Justice Breyer had a concurrence in which they agreed with the Court that -- they agreed with the five who were on Justice Thomas's opinion. They agreed that the government had the authority under the Affordable Care Act to issue an exemption. They did point out that it was at least plausible that while perhaps the government had reason to exempt the Little Sisters, that maybe somebody could make out a claim that they went too far because the rules theoretically could also let someone with a publicly traded corporation also assert an exemption. And there didn't seem to be any examples of anyone who had that exemption who was asking -- anyone had that objection who was asking for religious exemption among publicly traded corporations.

 

So the concurrence did leave open the possibility that there could be further litigation. I'll simply point out that those arguments, while there, are the arguments that the states left on the cutting room floor on the way to the Supreme Court. So those arguments are theoretically available, but the main thing to know about them is that they are the ones that the states chose not to press earlier in the case. And I think it's for very good reason that they chose not to press them. So it's possible the states will pick that up and continue it.

 

If they do, they'll simply be opening the door for what would be a force Little Sisters of the Poor win at the Supreme Court. So I'm not sure if they're really looking to do that, but they theoretically could. But ultimately, what I think the Court was trying to do with the 7-2 decision is, again, make clear that there's other ways to get this done.

 

And I think all of the governments that were in the case, both the federal government and this particular case had Pennsylvania and New Jersey, all of the governments demonstrated throughout the case that they have many, many, many ways that they can people contraceptives without needing to use the health plans of nuns.

 

And so if things go the way I think they ought to go, hopefully, the states simply at the end of this say okay, we don’t really need to keep banging our head into this wall and generating more wins for religious liberty and the Little Sisters of the Poor. Instead, we can use our energies, and if we think contraceptives are really important, we can give them out. If we think that they ought to be more widely available, we can make them more widely available. But we can do it all without nuns.

 

The second -- or I guess the third of our religious liberty decisions, the second one to come out on that same day, was Our Lady of Guadalupe v. Morrissey-Berru. This is a pair, actually a pair of cases that came from the Ninth Circuit concerning Catholic grammar schools, and they concern the question of whether people who are teachers at religious schools, people whose jobs include teaching religion and teaching the faith to children, teaching Catholic kids how to be Catholic, taking them to mass and so forth, whether the government is allowed to have a say in the hiring and firing and so and so forth in the contract renewing and so forth of employees like that.

 

And the Court, again, by a broad 7-2 majority said that for those types of employees, for people whose jobs includes passing on the faith to children, the government simply can't have a say even if it's to enforce anti-discrimination laws. One was a claim of age discrimination. One was a claim of disability discrimination. And the Court said that long-standing religious autonomy principles forbid the government from having a say in who ought to be in that role of teaching a faith to children.

 

In some ways, the result in the case is not a very big surprise. There had been a similar eight years ago called Hosanna-Tabor v. EEOC, in which the Court unanimously said that a similar teacher at a Lutheran school counted as a minister and therefore was somebody for whom these ordinary discrimination laws could not apply.

 

But it's important, the case is important, I think, in two respects. One, it very clearly says that it's the actions, it's the tasks of the person who you're talking about, the tasks of the job, that really matter. They say what matters is what the person does. If the person has an important role in passing on the faith, then the government doesn't get to micromanage who has that job.

 

But the second thing that I think is particularly important about the case is that it grounds this principle, which is often called the ministerial exception, but it grounds it in broad religious autonomy principles in a way that I think is important and may chart a pass for the future for other religious liberty questions where the Court is saying religious autonomy, the ability of religious groups to be who they are authentically, to be able to live out their beliefs and practice their beliefs and how they setup their organization and how they interact with people within the organization, that that's a very important principle, that under our Constitution, that is beyond the reach of civil government most of the time, and that our Constitution generally speaking will protect the rights of religious groups to run their institutions the way they see fit.

 

One interesting follow on to the Our Lady of Guadalupe case is just a few weeks ago, there was a controversy in Texas about whether local authorities in a particular county could order religious schools to not be able to open in person for the coming fall. And Attorney General Ken Paxton in Texas has a great attorney general's memo in which he relies heavily on Our Lady of Guadalupe and says look, the Court recognized these important religious autonomy questions and recognized these important principles and the importance of religious education, both to the families that choose it and to the religious groups that provide it, and therefore, civil governments don't necessarily have the ability to just unilaterally shut them down.

 

So, again, the three cases, Espinoza, Little Sisters, and Our Lady, I look at all three of those and I think it's really the Court continuing with this project of saying that what the religion clauses do is they give us a pass, they give us room for people who aren't necessarily going to be in conformity with the majority's views and majority's will all the time but who for constitutional and really important civil society reasons are supposed to have room to live out their faith and to do it authentically, to not be excluded from the public square or public participation because they do it, and who aren't to be penalized for it.

 

And that doesn’t necessarily mean, of course, that everybody after these cases will put down their litigation weapons and agree to live and let live. It would be interesting if that happened, but experience tells us it probably won't happen fully. But all of these cases, really, are cases that were generated because I would say a refusal to simply recognize that it's okay for the religious groups to live out their faith, to be a little bit different, to be who they are.

 

For the Little Sisters case, for example, it's a refusal to accept what seems to be the resolution after the prior two Supreme Court trips. Hopefully, after this round, folks will get the message that the Court is trying to say we ought to have room to live and let live and not keep coming after these religious groups but obviously if people just don't take the lesson, then the Court will have to keep deciding them. And I think, frankly, we'll keep going down the path it's been going for many years.

 

Let me stop there. Bill, do you want to take over?

 

Prof. William Saunders:  Thank, you, Mark. That was a great presentation and anticipated almost all the questions that I was going to ask. But I would just ask two and then we'll turn it over for the folks who are listening in to ask you some questions.

 

      The first one I wanted to ask is there was a difference in the votes on the Court between Our Lady of Guadalupe and Espinoza. Espinoza was 5-4, and Our Lady of Guadalupe was 7-2. Although, maybe even at least 7-2, I think the dissent even in that case argued about the facts somewhat. So anyway, seems to be very, very strong support for this proposition that religious institutions have to have autonomy for hiring and firing but less unanimity on the Court about whether a state could deny aid to a religious organization that it was giving to a secular one.

 

      Anyway, I'm just wondering if the difference in votes in those two cases might indicate a problem that'll rear its head in subsequent cases or whether if that affects your confidence at all about this division you just articulated about where the Court's going.

 

Prof. Mark Rienzi:  So the short answer is I don't think so. And you started to point this out about the Our Lady of Guadalupe case, but I think it also applies to a couple of the separate opinions in Espinoza. I think where you see disagreement, you're seeing some -- at least some of the disagreement are disagreement about the facts. In other words, it's not -- I don't really think there are many votes that say governments can exclude religious groups just because they're religious, right?

 

And then go back to the Trinity Lutheran decision from a few years ago about the playgrounds, which was a 7-2 decision. There's a little bit of oddity in the Espinoza case in that one way of looking at the Espinoza case is that everybody really was treated equally. And I say this, I don't actually think it's true, it's just one way of looking at it, because the Montana Supreme Court wiped out the whole program as a way to achieve the equality of a graveyard for everybody and said well, then nobody can have any program if any religious people are going benefit.

 

      There was some sentiment on the Court that said well, since they wiped out the whole program, they really did treat everybody equally, and so there's no unequal treatment. So I think that's a little bit different than an opinion that says unequal treatment is fine. And, again, I point back to Trinity Lutheran from a couple years earlier that had been 7-2. And even in Our Lady of Guadalupe, there was some dispute between the seven in the majority and the two in the dissents about how religiously important the obligations of those teachers were.

 

But, again, it didn't seem to be manifesting as a claim that religious groups shouldn't choose who teaches the faith. There was a bit of a factual dispute on the Court about whether these teachers really were important in teaching the faith. I think they were quite important, and seven justices agreed.

 

      So ultimately, I view those disagreements as they matter, but one, there's obviously in each of those cases five or in some cases seven votes who say it the other way. And even for the dissenters, many of the principles, I think, are the right ones, they just disagreed on how they played out in a particular case.

 

Prof. William Saunders:  Yeah. The other question I wanted to ask you, Mark, is it kind of, in a sense, builds on this, is just looking ahead to the next term. What can we expect, or what do you anticipate? What kind of issues might arise, and where the Court might be going?

 

Prof. Mark Rienzi:  Sure. So there's, I think, three right now, three religious liberty cases on the Supreme Court's docket for next term. One is Tanzin v. Tanvir. This is a case that was actually set to be argued in the March argument sitting last year, which was cancelled because of COVID-19. And so it's one of those cases that got rescheduled for next year.

 

But it's about whether there ought to be damages available for violations of RFRA. And this is a case of Muslim men who were put on a no-fly list as retaliation for their refusal to act as informants. And the question is whether they can get money damages under RFRA. And so that case will be argued in October, I believe. I think that's in the first sitting.

 

So that's over whether you can get damages under RFRA. The statute seems to authorize a broad range of remedies. So I think there's a very strong argument that, of course, RFRA does authorize damages, just like lots of other federal statutes. And there's no reason to think that it doesn't. And, in fact, it's important that it authorize damages because damages will at least help make sure people follow the law.

 

      After that, probably in the November sitting, is a case that we're handling called Fulton v. City of Philadelphia. And that one concerns the foster care program for the archdiocese of Philadelphia. And that is over the Supreme Court's -- not the Supreme Court's, the City's decision to exclude Catholic charities from its foster care program because the City disagrees with Catholic charities' views on sex and marriage. And so that's really one where I think the Court's push towards live and let live understanding of their religious liberties, the religious clauses of the Constitution, I think, suggest that they'll continue to go in the same direction.

 

      It's a situation where you can kind of have everything. You can have LGBT parents continuing to be able to foster, and you can have religious agencies that aren't quite the best ones to do the home studies to certify those homes and everybody can co-exist. And, in fact, the history shows that everybody has co-existed quite well in Philadelphia.

 

The record in the case shows that there actually were no gay couples that wanted the Catholic Church to come in and investigate their home life for their foster care certification anyway. So Fulton is a case where I suspect the Court will continue to do its live and let live version of the religion clauses.

 

      And the last one is one that I confess I will get the pronunciation all wrong on. The name of it is Uzuegbunam. And it's a case from Georgia. It's a case from Alliance Defending Freedom. And it's a case about a student who gets forced into a tiny speech zone and then gets harassed by the campus cops.

 

And our friends at Alliance Defending Freedom have put together a really strong petition that the Court just granted saying that the government shouldn't be able to slink away from its illegal actions simply by stopping breaking the law once somebody sues them or once somebody calls them to task. But instead, a claim for nominal damages is sufficient to defeat mootness. That is the way most circuits do it. That's not the way the Eleventh Circuit did it in the case in the lower courts. And the Supreme Court just granted cert on that at the end of the term.

 

      So all three of those are coming up to be argued in the fall or maybe at the latest the winter for Uzuegbunam.

 

Prof. William Saunders:  Thanks, Mark. Nick, I'll turn it back over to you.

 

Nick Marr:  Great. Thanks, Mark and Bill. We'll go to audience questions now. And just to give our audience a chance to line up in the queue, Mark, if I may, I'll lead off with the first question. Some people have pointed to this term as a great win for religious liberty, while some others have cautioned that these cases are at the margins, like, if these are the cases reaching the Court, maybe religious liberty isn't in such a good position now and going forward. I was wondering if you could speak to those concerns a bit, just generally and maybe with some specific examples from cases.

 

Prof. Mark Rienzi:  Sure. On one hand, I -- so there's much I agree with in the, I think, [inaudible 31:29] to the question. On one hand, you can say wow, religious liberty's doing very well at the Supreme Court. It has been doing well at the Supreme Court for most of the past eight or nine years because look at all the cases we're winning.

 

      On the other hand, you can look and say wait a second, we even have to bother go fight at the Supreme Court over whether the government can force nuns to give out contraception or the government can shut down Catholic foster care agencies for holding Catholic beliefs? That's outrageous.

 

      I think there's some truth to both of those, and I think that kind of goes with what I was saying earlier about the live and let live principle the Court is trying to steer us toward with the religion clause cases. Eventually, someone needs to put down the weapons and stop attacking.

 

Until they do put down the weapons and stop attacking though, the outcomes that we're getting are the right outcomes. We're getting good results from the Court saying strong things in favor of religious liberty, even where people in institutions may not be living in accordance with current majority views.

 

      So I think the results are great. You could think it would be better if we lived in a world where people weren't bringing those challenges, and the Little Sisters did not have to defend themselves in court. I certainly share that view. But there is a positive side, which is so long as people are foolish enough to keep feeding these types of cases to the Court, the Court seems to be of the mindset that it will be giving the right answers to the questions and that it will be saying that religious liberty is a real and important thing. And we need to be able to respect if for everyone.

 

      So you could look at it and say well, this is the glory days of religious liberty because we're winning all the time, or this is a dark cloud, stormy time for religious liberty because we have to go to Court. But I think there's a little bit of truth in both of those, but I would be on the sunnier side of it.

 

      I'll be happy when the other side stops throwing the pitches that let us keep making good religious liberty precedents. But until then, it's my view that it's an awfully good thing that when we have to go litigate them, we're getting to the right answers, and the Court is building up a good body of religious liberty precedent that people hopefully will be able to rely on for a real long time.

 

Nick Marr:  Thank you. We'll go to our first audience question now, and we have quite a few in the queue.

 

Caller 1:  Hi. If the Supreme Court is going to be reconsidering Smith and the whole question of whether to apply strict scrutiny, what is the best factual case in your opinion for advocates for religious liberty for that case to be? And I'm asking because a case like Fulton, which concerns the parties involved and their sexual orientation, I'm wondering if, like, for example, there was a case in California where a patient wanted sterilization from a Catholic hospital.

 

And the Catholic policy was we don't do sterilizations unless it's necessary to prevent cancer or some severe pathology. And this person was transgender and said I have gender dysphoria and therefore, I need this. It's a severe pathology. And the hospital's position wasn't that we won't do it because you're transgender or we won't do it because you're male or female or whatever. It just this is a specific conduct we will not do, the same way we would not perform an abortion or something like that.

 

And I'm wondering, especially as this issue is percolating in the court of public opinion, whether there's more understanding in the general public that even people who think abortion should be available, they understand why a religious physician should not be compelled to perform it as opposed to basing the distinction on the identity of the patient or the couple or whatever.

 

I'm wondering whether you think a case like that that concerns specific conduct rather than the identity of the parties involved might be one where there would be a broader range of sympathy for the religious dissenter?

 

Prof. Mark Rienzi:  Yeah. So it's a fair question, and I think it's, frankly, one that is kind of unknowable. From my point of view, I don't view Fulton as a case that is about identity at all. In other words, the Catholic Church and Catholic charities are fine approving single gay people as foster parents. They have done that before.

 

      So it's not an identity based thing. It really is that under state law, they need to engage in certain conduct in expression, which is they need to do an investigation of the home life of particular applicants. And they're specifically called on by state law to evaluate the relationships among the adults in the house.

 

      And so I don't view Fulton as about identity. I view Fulton as about the required conduct. And it's one where the agency is saying we're not trying to stand in the way of gay couples fostering or adopting. We're just saying gosh, I don't think the Catholic Church is really the entity you want to come in and do an evaluation and an assessment of your home life.

 

      Ultimately, from my point of view, it's for the Court to figure out when and whether it wants to revisit Smith. In Fulton, we presented that question to them, and they granted cert on that question. And ultimately, I think, from the Court's point of view, they're likely to look at a case like Fulton and see that Fulton demonstrates all the problems that Smith has wrought and all of the confusion it has created in the lower courts and all the bad results that it's created. And I assume that's why they granted cert in Fulton as they think that's important to consider.

 

Nick Marr:  We'll go to our next question.

 

Bob Fitzpatrick:  Hi, Bob Fitzpatrick. I'll try to be very concise. A couple of real quick questions. What impact does all of this, Our Lady in particular, have on cases like Masterpiece, Arlene Flowers, etc.? Two, do I read you to say that complicity doctrine has now prevailed and is embedded in First Amendment law, constitutional law?

 

And lastly, on Espinoza, does this mean that old cases like Palmer, the swimming pool case, are no longer good law? And, I guess, secondly on Espinoza, why to some people does it make a difference that the Nebraska Supreme shot everything down rather than the Nebraska Legislature? Some people seem to think if the legislature did it, the result would've been different. Sorry for so many questions but thanks.

 

Prof. Mark Rienzi:  No, I appreciate there's so many questions. It's fun. It keeps me on my toes. Let me see if I can hit all four. So I think the first one was does Our Lady have much to do with Masterpiece and Arlene's Flowers? I think the answer is generally, no, because Our Lady is really more about religious autonomy, the autonomy of religious groups, which those cases weren't about.

 

But if you broaden the lens a little bit, I think they have a lot to do with each other. Namely that I really do think they both are live and let live type cases which are saying that religious groups and religious people and religious business owners and so forth really ought to be given the room to live out their lives and should not have the government coming in and punishing them for trying to do it.

 

      I would not say that the complicit -- I think you asked do I think that the complicity doctrine has won as a matter of First Amendment law. I would not put it that way. What I would say is that no, religious liberty has won, and sometimes peoples' religious beliefs do involve things that it would be wrong for them to be complicit in, whether it's a war or abortion or capital punishment for systemic racism or whatever else somebody says I can't be part of that.

 

That is a very common type of religious and, frankly, secular moral thinking. There's nothing weird about it. I feel like from Hobby Lobby on, there's been an effort by some people to pretend that that's something new, different, funky, or weird. It's not. Our law is often based on complicity. There's a lot of things in our law that are based on complicity. So there's nothing weird about it.

 

      What has won, I think, is the idea that it's for the religious person. It's for the sister to figure out what her religious beliefs require, and the government does not actually try to pretend that they know better than sister does about what God wants her to do. That doesn't mean religious people always win. It does mean that the belief of the religious person, if it's sincere, ought to be taken for what it is. And then the questions ought just to be does the government have a compelling interest for overriding it? In the contraception context, that's always been rather laughable.

 

In other words, it's always been absurd to say that you need nuns to give out these drugs. There's a zillion other government programs. Well, our federal government can put a man on the moon. It can put mail in a box outside your house every day. They don't need nuns to give out contraception. They can, of course, do it another way.

 

      On whether it matters that it was the Montana Supreme Court or the Montana Legislature, some people thought that since the Montana Court did it, it wasn't tainted, that they had created equality and that that was the end of it. That never seemed right to me. In other words, ultimately, you still had the government of Montana, whichever organ it was, the government of Montana saying we must shutdown a program because some religious guy benefitted.

 

      And I apologize, Bob, I failed the test. You asked four questions, and I answered three. But I'm -- oh, whether this means the old swimming pool cases are gone. No, I don't think Espinoza means that the old swimming cases are gone. I would suspect that if somebody had to relitigate that, they may well be able to have some distinctions between the religious liberty case and the racial shut down of the swimming pools.

 

      Among other things, I imagine there could be some factual disputes about what was really going on. In Montana, you had it straight from the Court's mouth. This was definitely being done in order to make sure no religious people benefitted. So I suspect that people would be able to distinguish those cases.

 

Bob Fitzpatrick:  Five stars. You answered all four of my questions. Thank you ever so much.

 

Prof. Mark Rienzi:  Thanks for them.

 

Nick Marr:  Our next caller is area code 573.

 

Caller 3:  Two interrelated questions, both having to do with Our Lady. The Court characterized the teachers here as having a core religious function, an important religious function, a vital religious function. That, of course, invites civil judges to decide what is not core, not important, and not vital terms of religious function. And there was so much concern about civil courts doing that because that violates the religious question doctrine that Thomas wrote separately, joined by Gorsuch, saying well, his solution to that is just let the religious employer unilaterally decide who's a minister and who isn't. But the majority didn’t go along with that, so how do you sort out -- what is the law here so that we're not violating the religious question doctrine?

 

      And then related to that, the Court made much, which made a lot of sense, that the important role of religious schools and transferring the faith to the next generation. So how would we apply Our Lady to, say, religious charity, which might be intensely religious but might not be? Or even a tougher case, I think, would be a church-affiliated hospital.

 

We don't want to go back to the era where we say well, religious schools are pervasively sectarian. We despise that test and hospitals aren't. How do you see the doctrine here of the ministerial exception applying to, say, a religious hospital?

 

Prof. Mark Rienzi:  Yeah. So the short of it is I think we're going to have to wait and see. I can say that the ministerial exception existed for, I don't know, something like 40 years before even Hosanna-Tabor, and there's really only a couple of cases where hospitals claim somebody was a minister. And I think in each of those cases, I think they were talking about people whose job at the hospital was hospital chaplain, which, of course, now sounds like they're pretty ministerial.

 

      But I don't think there are any cases where they were claiming the doctors or nurses were minsters. So I would suspect, although I don't know, that that'll probably continue. But I do think that Our Lady of Guadalupe's -- that the broad form of the decision in talking about religious autonomy doctrine, the ministerial exception is not the only piece of religious autonomy doctrine.

 

And so whether it's about a teacher in a school who maybe doesn’t teach religion or an employee of a religious charity, which I think was an example you gave, I do think the Court's commitment to religious autonomy does give some protection there. And, of course, Title VII gives some protection there to hire and fire based on religion.

 

      So I don't think we really know the full scope of it or how it will always get sorted out, but I think it's a strong step in the direction of religious autonomy. And in terms of do we simply trust the school about who's a minister? I agree with you. The Gorsuch-Thomas concurrence was broader than what the majority gave, but the majority was pretty good. The majority did seem to think that the religious groups views on the issue matter quite a lot and that doing things like teaching and preaching the faith and worship and prayer and things like that were very important.

 

So I don't think the Court fully, fully answered that questions. I think they left it open. but again, they did it in the context of broad religious autonomy doctrines that I think will certainly be very good for schools and there's no reason to think they wouldn't also be useful doctrines even if they don't -- even if we don't know exactly how they play out for religious charities do.

 

Nick Marr:  We'll go to our next caller here.

 

Caller 4:  Hi. Twenty years ago, vouchers were -- a pure voucher program in Florida was deemed unconstitutional by the state. And I assume under Espinoza now that it would be constitutional.

 

Prof. Mark Rienzi:  So I'm not familiar with the -- yeah. I'm not personally familiar with --

 

Caller 4:  It was a pure voucher system where very parent would just be given a check annually and I think it was for like $2,500. And then they could take that money and apply it to any school of their choice.

 

Prof. Mark Rienzi:  Let me say two things about that. One is there was a case called Zelman v. Simmons-Harris, or I think that's the name, Zelman v. Simmons-Harris, from maybe 2002 or so. And I may be a little bit wrong in the years, but maybe just after what you're talking about where the court said that there's no Establishment Clause violation from doing that.

 

      In other words, as a matter of the federal Establishment Clause, if a government hands a check to each parent and some parents go spend that check at a secular place and some parents go spend it at a religious place, that the intervening private choice of the parent means there is no Establishment Clause problem.

 

      So from a federal Establishment Clause perspective, I think there's likely to be nothing at all wrong with the Florida program that you --

 

Caller 4:  Oh, I'm sorry. The Court used the Blaine Amendment. They had [inaudible 47:13].

 

Prof. Mark Rienzi:  Yeah. Florida does have a state Blaine Amendment, and I'm not familiar with the exact text of their Blaine Amendment, but yes. I think a decision like that sounds awfully suspect after Espinoza because Espinoza says you can't exclude them, and you can't kill the program just because some religious schools might participate. Again, I haven't gone back and looked at that decision, but that sounds like the kind of thing that is out of bounds after Espinoza.

 

Caller 4:  Great. Okay. Thank you.

 

Nick Marr:  Next caller. Area code 502, you have the floor.

 

Caller 5:  Thank you. In the Fulton Foster Care case, does that entail actual tax dollars going to help fund the Catholic charity's services? And if so, does that matter in the analysis of whether or not Philadelphia can choose to exclude Catholic charities from that program, so they don’t have to fund it?

 

Prof. Mark Rienzi:  So no tax dollars go to the part of the program where the church is finding and screening potential families. So that is not paid for by the government. That is paid for by Catholic charities. It's done by the charities themselves. The money only flows any place later on if a placement is made, if the state, or in this case, the city, makes a placement of a child in a particular household.

 

Then there is per diem money that goes to the parents and some per diem money that goes to the agency for coordinating the placement. So there is some government money, but the government money is not for doing the home studies, which is the thing that the Catholic charity said it would have to take a pass on.

 

      And as to whether that money -- and I apologize. My phone is ringing, and I was just thinking this might happen. I've been working at home for how many months now. I've never learned how to turn off that landline when it rings, so I apologize to everybody for having to listen to that.

 

      I don't think the government money makes a difference in -- or at least shouldn't make a difference in the constitutional analysis in Fulton. I do not think that the government, by coming in and essentially taking something like foster care, which was done by the church and religious groups long before it was done by the City of Philadelphia, I don't think that the city coming in and saying well, we're going to occupy this field and if you want to do it, you've got to do it through us, and we're going to pay people per diem when they do it.

 

I don't think any of that gets rid of the constitutional protections for the religious groups that participate in it any more than the fact that it was government money in Espinoza changes that fact. So no, I don't think it does or should.

 

Caller 5:  Thank you.

 

Nick Marr:  Great. We'll go to our next caller now.

 

Caller 6:  Hi. Thanks for the presentation. So I just was curious what your feeling is, if you have any trepidation with the Court's re-couching of the Establishment Clause as a requirement that government allow people to co-exist in harmony, whether that could, sort of, as time continually change. And certain religions are, for whatever reason or whatever motivation, may be falling into disfavor, if that could potentially allow for some mischief to intervene in the Court's interpretation of the Establishment Clause.

 

Prof. Mark Rienzi:  Well, I certainly would never be one to say that we could not see mischief intervene in any constitutional doctrine. My instinct is that what the Court's getting at there, what the majority was getting at in the American Legion, is just the idea that the Establishment Clause is not supposed to be about tearing down someone else's faith or not allowing for public demonstrations of a faith that you may not like or may not share or trying to scrub the public square of religion. I think that's what the Court was referring to in the American Legion case.

 

And I think that version of the Establishment Clause is A, frankly, what the people who agreed to it meant. In other words, I don't think any of them thought they were agreeing to the religion free society. I think they were agreeing to the society where the government doesn't force people to be part of a particular religion, doesn’t fund particular -- doesn't hire and fire the ministers and so forth. But I don't think they thought they were signing on to a society where religion was scrubbed.

 

      So I think the expression in American Legion is one that I find very positive. And I actually think both there and what they're doing with the Free Exercise Clause is actually good protection for the possibility of people having minority beliefs and minority faiths. And I think it's actually a quintessentially American thing to co-exist with people who have very different beliefs, even about important things. And I think that's been part of our history from the outset. And I would hope that what the Court means by that is the good version of it and not the version you suggest of making mischief with it.

 

Caller 6:  Fair enough. Thank you.

 

Nick Marr:  We have one more question left in the queue.

 

Stephen Casey:  Hey, yeah. Thank you so much for this time, Mark. This is Stephen Casey from Austin, Texas. I'm glad you're on this call.

 

Prof. Mark Rienzi:  I thought your voice sounded familiar.

 

Stephen Casey:  Yeah. So you said at the very end of your comments that we got this split thing where we're winning cases but everything seems to go to the Supreme Court, right? So that the analog to this is like abortion jurisprudence, right. Any type of conflict resolution that has unclear rules will always be driven to the highest level, cc that every abortion case basically gets resolved at the Supreme Court no matter what it is because the undue burden standard is intrinsically unclear and only depends on the idiosyncratic view of a particular judge.

 

      So what gives me grave discomfort is that when we're saying well, we won these on RFRA, right? RFRA solely depends on the self-talk of the judge. What does the judge think is a substantial burden? What does the judge think about this?

 

      So in reality what we're saying as a federalist society is more power to the legislature judge; judges just say what the law is and we uphold RFRA and decry Smith. And more, I really just want a judge who views things in my two-stories world view where like Peter and John were told to stop teaching about Jesus and they told the Sanhedrin, you do what you find. We obey a higher power.

 

      We want judges like that if we're on the religious group. The other group doesn't want a judge. They want a secular minded judge who doesn't care about transcendent value. So if that's the case, and we see it happening in religious freedom right now where everything goes to the Supreme Court, it seems just a matter of time before we start losing these to other judges. Why can't we think of a better standard if everybody has a problem with Smith that's still not the RFRA whatever you want it to happen standard as long as our favorite judge is on the bench?

 

Prof. Mark Rienzi:  So one, I'll go back to what Nick said at the outset because Nick said that the opinions were mine and not Federalist Society's. So just to be clear, everything you hear is just mine --

 

Stephen Casey:  Sure. Yeah, yeah.

 

 Prof. Mark Rienzi:  -- not Federalist Society. So from my point of view, I think the one, these aren't just RFRA cases, right? Two of the three of them this term weren't RFRA cases. But two, the RFRA standard of compelling interest and least restrictive means is one that's actually been litigated quite a bit, and you compared to undue burden. Compelling interest test actually has a whole lot more behind it and much more of a pedigree and a lot more cases built out.

 

      Ultimately, it's certainly true that rights protected in a Constitution where you have to go to court to vindicate them ultimately do depend on the judge getting it right. I think one of the telling things in these religion cases is that it's not simply conservative judges or judges who are necessarily staking out turf and saying they're pro-religion, but it's broader than that. They're moving to more broadly than that.

 

      So I agree with you that any judicial standard has the possibility of mischief. But I do think the compelling interest test that we're dealing with under RFRA is one that is pretty well built out from a lot of areas of constitutional law. And I think the fact we're getting broad majorities on a lot of these decisions, not only as a RFRA matter but also as a Free Exercise and First Amendment matter, bodes pretty well.

 

Stephen Casey:  Thank you very much. Take care. 

 

Prof. Mark Rienzi:  Thank you.

 

Nick Marr:  Great. I'll give you a chance, both Professor Saunders and Professor Rienzi, for any closing remarks you might have before we close out today.

 

Prof. William Saunders:  Well, this is Bill. I'll just say that I'll defer to mark. Again, I think that was a very interesting and positive way of looking forward. And I think that the term, which in some ways was very disappointing and some other ways on religious liberty, turned out to be a pretty good one.

 

      So, Mark, I'll give the last word to you.

 

Prof. Mark Rienzi:  Thanks, Bill. I don't have much to add. I thought it was a lot of great and interesting questions. And I think you all exhausted both my voice and my commentary. So that's all I've got, thanks very much. Thanks very much everybody for listening. 

 

Nick Marr:  Great. And on behalf of The Federalist Society, I want to thank you both for the benefit of your valuable time and expertise today. To the audience, we welcome listener feedback by email at info@fed-soc.org. Our next teleforum will be tomorrow at noon Eastern Time, an update on national environmental policy act. And be sure to keep checking the schedule and your emails for announcements on upcoming Teleforums. Thank you all for joining us this afternoon. We're adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.