Special Topics in Religious Liberty Series #1: Recent and Upcoming Supreme Court Cases

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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, August 31, 2020, will be the first in a series entitled, “Special Topics in Religious Liberty.” Today we’ll cover recent and upcoming Supreme Court cases. My name is Nick Marr, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call. And I should note, they are also the opinions of the speakers, not of their representative law firm, Jones Day.

 

      And today we’re fortunate to have with us Anthony Dick, who is a Partner at Jones Day; Victoria Dorfman, a Partner at Jones Day; and David Reamer, a Partner at Jones Day. After our speakers give their remarks on three different cases, we’ll open is up for audience questions. So have those in mind and be ready with those when we get to that portion of the call. So thanks, all, for being with us here today. Victoria, the floor is yours.

 

Victoria Dorfman:  Good afternoon. I’m Victoria Dorfman, partner in the Issues and Appeals Group of Jones Day Washington D.C. office. Thank you so much for taking the time to join us to talk about this important subject.

 

      I will speak about two cases, Our Lady of Guadalupe School v. Morrissey-Berru and Roman Catholic Archdiocese of San Juan v. Feliciano. So let’s start with Our Lady of Guadalupe. That case was consolidated with St. James v. Biel, both coming out of the Ninth Circuit. This is the second ministerial exception case in the Supreme Court. The first was 2012, Hosanna-Tabor v. EEOC, and there the Court unanimously held that the First Amendment barred the court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught.

 

      Justice Alito, joined by Justice Kagan, wrote one of the concurrences, which was featured prominently in Our Lady, where Justice Alito wrote for the majority. So ministerial exception is a misnomer as the Supreme Court has repeatedly acknowledged. And, indeed, of the cases so far were about teachers, at least in the Supreme Court.

 

      Jones Day involvement in shaping the content of ministerial exception has been longstanding. We have filed multiple briefs in support of religious organizations represented by our friends at the Beckett Fund. And our team, including my colleague Anthony, who will be speaking today, filed an amicus brief in this litigation on behalf of 15 law professors on the history of religion clauses and religious autonomy – the key to ministerial exception as you’ll see.

 

      We’ve also filed amicus briefs in the Second and Third Circuits where courts have embraced our position and cited writings of professor-signatories, and our team has published articles on this issue.

 

      So what did the Supreme Court hold in Our Lady broadly speaking? Broadly speaking, its First Amendment protects the right of religious institutions to decide, for themselves, free from state interference, matters of church government as well as those of faith and doctrine. That is what religious autonomy is, and this’ll be a reoccurring theme in this presentation.

 

      More specifically, ministerial exception is a category of religious autonomy, and it applies towards governing employment relationship between the religious institution and certain employees. So then, of course, the question is “Which jobs within the organization are ministerial?”

 

      Hosanna-Tabor, the first case, laid out four relevant circumstances but did not highlight any as essential. And the four were title, substance reflected in the title, how the employee held herself out, and job duties. The Ninth Circuit applied the rigid test requiring all factors to be met. The Supreme Court in Our Lady said this approach produced a distorted analysis and rejected it.

 

      But the Supreme Court has also explained that simply giving an employee the title of minister is not enough. And the clearest example would be if a church were to give its janitor the title of minister but not change anything about the janitor’s duties, the Court is very unlikely to apply ministerial exception. At the same time, the Supreme Court explained having the title of minister is not a necessary requirement for someone, for instance, to lead a congregation because many religions do not use the title. And such religious pluralism in our society is a significant factor in both Justice Alito and Kagan’s concurrence in Hosanna-Tabor and in the focus of Our Lady on the function here.

 

      And so, the key, as the Supreme Court explained here, is the function job duties. “What matters at bottom is what an employee does;” that’s a quote from Our Lady. And that also comes from Justice Alito and Kagan’s concurrence in Hosanna-Tabor in some way. The example the Supreme Court gave are educating young people in their faith, inculcating its teachings, and training them to live their faith. Well, it’s not surprising that this sounds like something teachers do because this was the case before the Supreme Court, but, of course, the Supreme Court, cognizant that other scenarios come up, gave some other examples such as individuals performing vital religious duties, or duties at the core of the mission of the institution, or of the very reason for the existence of the institution, and certain important positions within religious institutions would also qualify for ministerial exception.

 

      The way Hosanna-Tabor summarized those are preach their beliefs, teach their faith, and carry out their mission.

 

      Now, Justice Sotomayor dissented in Our Lady and she was joined by Justice Ginsburg. And she said the formulation Our Lady gave is very broad and potentially includes all parents of all students in religious schools, not because they're frequently involved in the education as well. My view is it’s very doubtful that that’s how courts will interpret it. That’s not how they’ve done it before and are unlikely to do so going forward.

 

      So what all did the Supreme Court say how to ascertain whether someone would fall under the ministerial exception? The Court said that first, you look at all the factors, such as what do employment agreements and faculty handbooks, for instance, say about duties and evaluations? And in the cases before the Supreme Court, employed teachers in that instance, were expected to help the schools to carry out their mission, and the teachers were evaluated to ensure that they were fulfilling that responsibility.

 

      So what does this mean for organizations which want to make sure that certain of its employees are covered by the ministerial exception based on their functions? That means that the organizations would benefit from memorializing in the employment contracts and internal [inaudible 7:40] documents and evaluations that an employee performs its functions that they're essential to carrying out the organization’s mission.

 

      The Supreme Court, the majority in Our Lady, also rejected a coreligionist requirement over the dissent’s objection. So, for instance, a Hindu teacher performing the same functions as Morrissey-Berru and teaching at the same Our Lady school, the Catholic school, will likely be covered by the ministerial exception.

 

      As discussed during the oral argument and briefing, it would be almost impossible to administer the coreligionist requirement and would ultimately require courts to probe deeply into who the true adherence of various denominations are. And the immediate examples that come to mind is, for instance, a reformed Jew of the same religion as an Orthodox Jew. Are Catholics and Protestants of the same religion because they're Christians, etc.? And such requirement would also penalize minority denominations, which may have difficulties finding and coaching people of their own faith to teach in schools.

 

      The other important issue that all opinions in Our Lady spoke about is the level of deference to religious institutions. The majority made clear that some deference to the institution’s own view of the employee’s functions is warranted. And I quote, “A religious institution’s explanation of the role of such employees in the life of the religion in question is important.” Of course, the function is the key factor out of four.

 

      So the majority’s reason for this deference was in a country with religious diversity as the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs the particular role in every religious tradition. Interestingly, Justices Thomas and Gorsuch’s concurrence agreed with that very reason, but their conclusion is, therefore, courts should defer to religious organization’s good faith claims that a certain employee’s position is ministerial.

 

      The dissent, the Justices agreed saying courts would be a rubber stamp because function is the most important factor and it is for religious organizations to explain.

 

      The bottom line is everybody agreed that the level of deference is quite significant, and there is arguably a convergence between the majority and the concurrence, even though that’s not what they say.

 

      So the next question is where does the ministerial exception apply? It applies more to the other ADA, ADEA, Title VII and similar statutes. That said, we filed an amicus brief and our side prevailed in the Third Circuit which applied it in a contract dispute between a church and its former pastor.

 

      Ministerial exception performs a different function from BFOQ in the ADEA and Title VII and Section 702 in Title VII as the Court explained anti-discrimination statutes contain provisions allowing religious employers to give preference to members of a particular faith in employing individuals to do work connected to their activities. And the example the Supreme Court gave was think of the quintessential case where a church wants to dismiss its minister for poor performance. The church’s objection is not that the minister has gone over to some other faith, but that the minister is failing to perform essential functions in a satisfactory manner.

 

      The dissent, again, faults the majority for interpreting ministerial exception as broadly as it can without regard for the statutory exceptions narrowly tailored to protect religious practice. Interestingly, during the oral argument, Justice Breyer questioned why ministerial exception [inaudible 11:39] at all, given the various statutory protections. But of course, ministerial exception is based on the institution and cannot be substituted by a patchwork of federal and state statutes, which can be revised at any time. And ultimately, Justice Breyer joined the majority here.

 

      So watching beyond ministerial exception, other than internal management decisions, which is what Our Lady dealt with, what else is protected by the religion clauses? And here we come back to the [inaudible 12:11] of religious autonomy. That includes the right to decide matters of faith and doctrine, matters of church government, work at the core of religious organization’s mission for judicial review of how religious organizations discharge those responsibilities would undermine the organization’s independence, and other matters are components of religious autonomy.

 

      The Supreme Court gave a couple of examples such as control of property and appointment and authority of bishops. And the Court also said in addition to this precedence, they looked to the background against which the First Amendment was adopted. And that was actually one of the topics in our amicus brief. So if at the time of the adoption of the First Amendment, some affluent religious organization’s function was protected from governmental interference, it will rightly also be protected today.

 

      One example that comes to mind beyond employment litigation or breach of contract litigation is bankruptcy, which is going to be a subject of the second part of this serious by our Jones Day colleagues. So how should courts treat church internal structure and transfers and bankruptcy if, for instance, a church says “Those are an essential part of its church covenants and they're dictated by its faith and doctrine”?

 

      Another example is abuse litigation against various religious entities, also to be discussed in the second part of our series. As you know, many dioceses around the country have been sued by plaintiffs alleging that they were abused by priests, parish school teachers, or church volunteers. Their [inaudible 13:47] range from intentional torts such as assault and battery against accused individuals. The plaintiffs have respondeat superior to hold the religious entity itself responsible for those acts, and negligent hiring and supervision against religious entities.

 

      So the question is if a religious organization has subsidiaries or [inaudible 14:04], which entity is responsible for the misconduct of its employees? Is the diocese responsible for its parish school teacher’s misconduct to its students?

 

      And so in connection with that, I’d like to talk about the other Supreme Court decision, Roman Catholic Archdiocese of San Juan v. Feliciano. It’s a peculiar per curiam opinion with a notable concurrence and an interesting Solicitor General amicus brief. That case arose when a pension funds for a Catholic school in Puerto Rico stopped making payments. Teachers sued the fund and also the Archdiocese of Puerto Rico and the Catholic Church there. Puerto Rico courts treated all the Catholic institutions on the island as one legal entity, and that included the Archdiocese that comprised the archdioceses and the parishes. And the court then ordered $5 million in assets to be seized from the churches to pay the pensions.

 

      The U.S. Supreme Court held that the Puerto Rico court lacked jurisdiction to enter certain orders. But it was Justice Alito and Thomas’s concurrence that spoke about the correct interpretation of the Puerto Rico court but if the Catholic Church on Puerto Rico was a single entity and whether it should have -- all the different assets should have been aggregated. And more importantly, they talked about deference to religious organization’s own understanding of their structure. That depends, for example, on whether a diocese is liable for various entities that are associated with it and the conduct of the employees of those entities.

 

      So the interesting issue that’s raised in the Solicitor General’s amicus brief, which points to the obvious exceptions to corporate separateness, and that would be agency, joint-and-several liability, veil-piercing. It is not clear on the current case, though, how those interact with the religious organization’s own understanding of its structure. So the key issue likely litigated in this domain is to what extent those corporate separateness override the religious organization’s own understanding of its structure.

 

      And the decision in Our Lady may have an impact on that, both because it mandates some deference and because it tells courts to respect and not to interfere in matters of church government. And in Fulton v. Philadelphia case that my colleague David will discuss may also bear on this issue as it may overrule Employment Decision v. Smith and the neutral principle of line of jurisprudence.

 

      In summary, many issues will be impacted by this decision beyond the ones that were obviously at stake. And with that, I’ll pass it to David.      

     

David Raimer:  Thanks, Victoria. This is David Raimer, also a Partner with Jones Day. I'm going to talk next about Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, which are two cases that were decided together this last term.

 

      These are the latest, and almost certainly not the last, round in the ongoing dispute over the Affordable Care Act's so-called contraception mandate, something that we at Jones Day are familiar with. While we weren't involved in this round of litigation, we were involved in the last round of litigation that culminated in Zubik v. Burwell, but more on that in a minute.

 

      Litigation around the contraception mandate has been now going on for over ten years, so some background is necessary to understand what happened in this case. It all started in 2010 with the enactment of the Affordable Care Act, and the ACA includes language requiring health plans to provide "preventive care and screenings as provided for in comprehensive guidelines supported by the Health Resources and Services Administration."

 

      Basically, Congress shipped it off to the agency to decide what would be included in that mandate. The agency determined that preventive services would include contraception and, in 2012, issued what's come to be known as the contraceptive mandate requiring most health plans to provide that coverage.

 

      There was a narrow exemption for churches and houses of worship who were not required to provide that coverage originally. Then, later, there was a so-called accommodation added for nonprofit religious objectors. Basically, what that accommodation allowed them to do was file a document which then authorized the government to compel the objector's insurance company or third-party administrator to provide the mandated coverage in connection with the objector's plan.

 

      So that was the state of the law. The mandate itself was first challenged in Burwell v. Hobby Lobby Stores. That challenge was brought under the Religious Freedom Restoration Act, or RFRA. I assume most of you on the call are familiar with that statute, but basically, it's a super statute that amends the entire U.S. Code to say the federal government can't substantially burden a person's religious exercise unless that burden is in furtherance of a compelling government interest and is the least restrictive means to achieve that interest.

 

      In short, the federal government, in theory, can't make you do something you think is wrong unless they've got a really good reason for it.

 

      The Supreme Court said, "Well, the mandate, as applied to for-profit entities that can't take advantage of the accommodation, violates RFRA." But what about the accommodation? Well, that was supposed to be decided in a case known as Zubik v. Burwell to which the Little Sisters were also a party.

 

      Unfortunately, Justice Scalia passed away right before that case was argued and, presumably deadlocked 4-4, the justices essentially punted and asked the parties to try and work things out amongst themselves.

 

      That went about as well as you would expect, and the Obama administration, who was then in power, threw up their hands and basically said, "Look, there's nothing more we can do to accommodate religion."

 

      That changed when the Trump administration came in. They went ahead and expanded that original exemption that originally applied only to churches and houses of worship. It was expanded to apply to nonprofit and for-profit objectors and also to apply to people with religious objections but also moral objections. They kept the accommodation, but they made it optional.

 

      Those regulatory changes immediately prompted litigation brought by various state attorneys general who obtained injunctions against this expanded exemption, including a nationwide injunction that was the subject of the Court's decision in Little Sisters. That decision, by a 7-2 margin, vacated the nationwide injunction against the exemption in an opinion authored by Justice Thomas.

 

      That opinion really does three things. First, the Court held that the text of the Affordable Care Act has sufficient play in the joints that it authorizes the government to decide not only what sort of preventive services must be provided but also who can be required to provide them. The key language from the statute was the language "as provided in." That allows the government to decide not only the what but the who.

 

      Second, the Court held that when issuing the regulations, it was proper for the government to consider RFRA. The state attorney generals had essentially argued that RFRA doesn't apply in the regulatory decision-making context; it should be just left to courts. The Supreme Court rejected that argument and said, "No, they were authorized to consider RFRA and, in fact, we pretty much told them they needed to in both Hobby Lobby and Zubik."

 

      Finally, the Court held that there were no procedural defects in the promulgation of the exemption. I won't get into too many details here, but in short, the AGs had brought a procedural Administrative Procedure Act challenge to the mandate. They argued there wasn't sufficient notice and comment, and that the government had not kept an open mind when reviewing those comments.

 

      The Court rejected both of those challenges. They said there was sufficient notice and comment, and that they wouldn't hold the government to that open-mindedness standard.

 

      Justice Ginsburg, joined by Justice Sotomayor, dissented. From her perspective, she would've held that the Affordable Care Act only allows the government to decide the type of preventive services provided. They could decide the what, but they would not be able to decide the who.

 

      Since the ACA didn't afford the government the opportunity to create an exemption, she would also go on to hold that RFRA doesn't authorize an exemption here either. The primary reasoning for that was that an exemption here would burden third parties; namely, there would be some subset of women who would not be able to obtain contraceptive coverage in connection with their employers' health plans.

 

      In summary, what the opinion does. It says that the Affordable Care Act authorizes the government to create exemptions from the mandate, they can consider RFRA when doing so, and this existing expanded exemption doesn't have any procedural defects in it.

 

      Now, what the opinion does not do—and this is significant—is hold that the exemption is required by RFRA. Essentially, the opinion is just a statutory interpretation of the Affordable Care Act.

 

Now, Justice Alito wrote a concurrence, joined by Justice Gorsuch, essentially saying that not only was the government authorized to create this exemption but RFRA actually requires them to do it. But that was not in the majority opinion. That is significant because the majority opinion also did not hold that the government provided adequate reasoning for the expanded exemption.

 

Justice Kagan, joined by Justice Breyer, wrote a concurrence that basically provides a roadmap for a lower court to potentially enjoin the exemption as arbitrary and capricious under the Administrative Procedure Act.

 

In short, Justice Kagan believes that the exemption is over broad. In theory, it applies to all employers with religious objections to the mandate, even those who would be okay with the accommodation.

 

Now, one can query why any organization would take advantage of the exemption except for religious reason—there's no added cost and it provides an additional benefit to employees—but that is where things are there.

 

The question, then, becomes what is going to happen next? Well, the Pennsylvania Attorney General has indicated that he's going to continue the litigation in district court in the Eastern District of Pennsylvania, and the parties there actually just filed a joint motion setting a briefing schedule for a new summary judgment briefing there.

 

Vice President Biden has indicated that if he were elected, he would revoke the expanded exemption. So one way or another—either if the Pennsylvania Federal District Court enjoins the exception or if it is repealed in a new administration—it's quite possible that we will be in a position where we will be discussing another Supreme Court case involving the contraceptive mandate in potentially the next year or two. So we'll see where things play out on that front.

 

For now, I'm going to send it over to my partner, Anthony.

 

Anthony Dick:  Thank you, David. This is Anthony Dick. For a change of pace, I am a partner in the Washington office of Jones Day also.

 

      I'm going to be talking about two cases involving when the government may exclude religious entities from participating in public benefits and programs. One of the cases was decided just this past term, and another case is going to be decided. It's now been almost fully briefed. It's going to be decided next term.

 

      I'm going to refer to the first case as the easier case, which probably doesn't do it justice because it may seem easy in hindsight but might not have been at the time. This was Espinoza v. Montana Department of Revenue from last term which involved exclusion of a school based on its religious character from a public tuition assistance program.

 

      The second case I'm going to talk about, which is coming up for argument and decision next term, is Fulton v. City of Philadelphia which involves the exclusion of a Catholic charitable organization from participating in a public foster care program in the city of Philadelphia.

 

      To begin from the one this past term in Espinoza, the issue there was really about the exclusion of religious entities based on their religious character. The state of Montana in that case provided tuition assistance for private school, generally, but it did not provide that assistance for private religious schools.

 

The reason it didn't do that is because of a basic concern about the separation of church and state. It had an amendment in the state constitution—a type of amendment sometimes called a Blaine Amendment—which basically prohibited the provision of public aid to religious entities.

 

The state court there had decided, essentially, that if you provided these tuition assistance scholarships to parents to use them at religious schools, that would be a form of public assistance for a religious entity, and that would be impermissible.

 

The theory of the school in that case, the religious school, was that is essentially discrimination against a religion and against a religious school based really on nothing other than the religious status of the school. So it's not that the schools were doing something that the state didn't like; it's not that they were engaged in some type of disfavored conduct. It's just the fact that they were religious schools precluded them from getting this tuition assistance that would be available to every other school as long as it wasn't religious.

 

This is the way the Supreme Court ended up looking at the case. The First Amendment requires religious entities to at least be treated equally and not to be discriminated against by virtue of their religious character. You can't exclude a religious school based just on the fact that it's religious in character.

 

This built on a precedent from a few years ago in a case called Trinity Lutheran, which was about a program that the State of Missouri had provided to help pay for playground resurfacing that would provide those rubberized playground surfaces to prevent kids from being injured. There was a question there, again, of whether those grants could go to religious entities that were applying for this type of playground resurfacing. The Supreme Court said that they can't exclude religious groups from that.

 

Espinoza was arguably a little more closely tied to some money going to more religious aspects since the tuition was going to the school generally. In Trinity Lutheran, it was supporting playground resurfacing, so the connection there to some plausible religious use might be seen as more attenuated.

 

Espinoza takes us one step further in now providing general tuition assistance that can go to the schools that could be used for something broader than just resurfacing the playground. So it builds on that precedent in Trinity Lutheran, and it distinguishes an older precedent from a case called Locke v. Davey, and it very importantly narrows and distinguishes that decision.

 

Locke v. Davey is an old decision that involved whether a state scholarship fund could decline to, essentially, provide scholarships for students who were pursuing devotional theology degrees. In Espinoza, the Supreme Court explained that that was really about a fairly narrow historical exception; that that's not discriminating against people just because of their religious character. It was a very narrow historical exception about the government not wanting to provide support specifically for the training of clergy because of the unique concerns that presents.

 

After Espinoza, that cabins to this historical exception where even though you generally have to provide aid to religious and secular groups on equal terms, there may be some religious uses—like the training of clergy—that the government can decline to fund because you don't want that kind of close entanglement with a very sensitive and controversial religious activity.

 

Going forward, there's a question of how broad is that exception? What is the category of religious uses that the government can decline to fund?

 

For example, if there's a public program to subsidize the purchase of books for schools, could the government say, "But we don't want to fund the purchase of Bibles or other types of religious texts." The exact contours of what that Locke v. Davey category of things the government can decline to use still remains to be worked out, to some degree.

 

The bottom line coming out of Espinoza is that the separation of church and state that the court—you sometimes hear about the wall of separation—is really no justification for declining to provide funding to religious groups on equal terms with secular groups.

 

You can't have a program and say, "Any group can get this funding for assistance but not if you're religious because we want to keep up the separation of church and state." So you have to place them on an equal footing in that regard.

 

That was the case from last term, Espinoza. It's what I'm calling the easier case, largely to distinguish it from what I think is the more difficult issue coming up in the next term in this case called Fulton v. City of Philadelphia, which is not so much about the religious status of the entity or the organization but about the religiously motivated conduct that an entity or an organization wants to engage in, and can the government exclude a religious organization from a public program or benefit because of the certain conduct that that religious group engages in.

 

In particular what is at issue here is the city of Philadelphia -- for two centuries there has been a Catholic presence in helping to provide foster care to disadvantaged children in need of foster homes. That long history came to an end a few years ago after -- there wasn't an application from a same-sex couple, but there was a report in the media that certain Catholic foster care agencies would decline to certify same-sex parents as foster parents if presented with that type of application.

 

A little bit of background on how the city's foster care program works. Essentially, by law, when a child has for some reason—it can be a variety of different reasons—is placed into foster care or is no longer in the care of parents, the city essentially, by law, is given responsibility for providing care for the child.

 

The city, then, has a program to try to get those children placed in foster homes. To do that, the city works with dozens of agencies, charitable organizations, that will essentially try to match the child with a foster parent. The private agencies will go out and recruit and help find parents who would serve as foster parents, and the private agencies have to certify those parents as basically a suitable home for the foster children.

 

The Catholic Social Services organization in Philadelphia is one of those, and this was the media report that the Catholic organization would not agree to certify same-sex couples as a suitable home for foster children.

 

As a result of that, the city of Philadelphia decided that it was no longer going to license the Catholic agency as a participating partner of essentially recruiting and bringing in foster parents to match with children. Even though there, again, had never been a same-sex couple that had gone and been turned away, they said that, based on this religious precept that the agency did not consider same-sex married couples to be suitable foster parents, that they would no longer work with that agency.

 

The case involved a challenge by the Catholic agency that we're being excluded from this government program because of our religious belief that same-sex couples are not a suitable home for foster children. Even though there are many other agencies where same-sex parents could go and could get a placement, could be certified and matched with foster children, the city has taken the position that it can't participate with them because it views this as unjust discrimination, and it has various policies that the city claims preclude the participation of an agency that's going to engage in this, what they view as, unlawful discrimination.

 

Again, to distinguish from Espinoza, the city takes the position that this is not discrimination because of the religious character of the service provider but of the religiously motivated conduct—a certain type of behavior that they don't want to allow to occur in the certification of foster parents; namely, discrimination against same-sex couples.

 

It's not like Espinoza in that it's just the fact that you're religious is the reason we're excluding you; it's because of this religious practice you have with respect to same-sex parenting.

 

The challenge is under the First Amendment, and there are really three issues that are in the case. Before I talk about those three issues, just the background principle that really sets the stage for this is the case of Employment Division v. Smith, which is a case written by Justice Scalia back in 1990, which says basically that if there is a neutral and generally applicable government policy or criminal prohibition, that you don't typically get exemptions just because you want to do something that would violate that policy for religious reasons.

 

In that case, in Smith, there was a ban on peyote—the use of a hallucinogenic drug—and the fact that somebody wanted to use peyote for a religious ceremony did not entitle them to an exemption from the law against peyote. The Court said if there's a neutral, generally applicable law, then the law will get rational basis scrutiny. You're not going to get strict scrutiny, or really even any kind of heightened scrutiny, just because you want to engage in an activity that is otherwise prohibited for everyone else just because you have a religious reason to do it.

 

In Fulton, what the city is saying is, "Look, we're banning everyone from engaging in discrimination based on sexual orientation, and the fact that you want to do that for religious reasons, that doesn't entitle you to any kind of exemption to participate in the program."

 

I said there are three issues in the case. The first issue is a compelled speech issue that really doesn't bear directly on the Employment Division v. Smith question, but it's essentially that agencies have to certify same-sex couples as providing a suitable home, and so the argument from the Catholic plaintiffs in this case is "We don't want to have to certify something against our religious beliefs. This essentially compels us to speak contrary to our religious beliefs."

 

That provides a ground that wouldn't really even implicate the free exercise question because that's really a free speech question. It's not an argument based on the freedom of religion but on the freedom of speech that we shouldn't have to certify same-sex parents as providing a suitable home for children if that's contrary to what we believe.

 

Put that to one side. Then, the two free exercise questions in the case are:  Is this really the type of neutral and generally applicable law that the Court was dealing with in Smith? Or, is this the type of law that is not neutral and generally applicable and, therefore, should be subject to some heightened scrutiny, or even strict scrutiny, because of that?

 

Let's unpack that a little bit. What does that mean? In Smith, it said, "There's across-the-board ban on peyote. Nobody can use it. You don't get an exemption." But there are lots of other laws that aren't so across the board and that might allow for individualized exceptions—we're going to give an exemption to one person for that reason, another person for that reason.

 

Once you start doing that, the Court has recognized, that's no longer a generally applicable law. If you have made some exceptions, you really have to entertain religious exceptions too because you can't deem religious exemptions less worthy than other secular exemptions unless you've got a really good reason for saying that a religious exemption is not allowed when other types of exemptions are.

 

That would make the law not generally applicable; it would get strict scrutiny for that reason.

 

And then the neutral piece—the test is whether it's neutral and generally applicable. A law can also get strict scrutiny if it is not neutral toward religion but it's motivated by hostility toward religion. For example, if you banned small disc-shaped wafers and you said, "Well, that law applies to everyone," but it's really clear you're doing that to target Catholic communion wafers; that law may look neutral on its face, but everyone knows that it's really motivated by religious hostility.

 

Or, if you ban certain practices of slaughtering animals—that's another example from a case called Lukumi—but you don't ban very similar other types, this is really a way of targeting certain ritual animal sacrifice of a particular religious group, so it's really targeted toward that group. That'll trigger a heightened scrutiny also.

 

The argument that they're making in the Fulton case, that the Catholic plaintiffs are making, is that there are all kinds of exemptions that are allowed for agencies to consider other types of protected categories of characteristics.

 

An agency may think that there's relevant types of disabilities that foster parents would have or the race of the foster parents if they want to match a Native American foster child with that type of parent.

 

There's all kinds of subjective judgment calls that are allowed to be made in certifying a suitable foster placement. Why can you not consider sexual orientation? The argument is basically you are allowing lots of other exceptions from nondiscrimination principles if the agency is making a determination of child welfare. Why are you not going to allow sexual orientation based on the religious belief to factor into that? The argument is it's not generally applicable.

 

      There's also an argument about neutrality that really the city is hostile towards Catholic beliefs about marriage and about the nature of marriage as between a man and a woman, and there's evidence on the record that there was some hostility, the plaintiffs argue, to their beliefs on that basis.

 

      That's kind of a very fact-intensive, case-specific thing that's sort of similar to the argument that prevailed in the Masterpiece Cakeshop case from a couple terms back where the Court dodged this question about whether you can have an exception to nondiscrimination laws in general and just looked to the specific case and whether there was some hostility or whether there was a particular reason in this case to rule in favor of the religious plaintiff. That's a very fact-specific inquiry that we're going to have to see how that comes out.

 

      And, then, the third issue in the case is if this really is a neutral and generally applicable law, should Smith be reconsidered in that aspect that says that you don't generally get exemptions from neutral and generally applicable laws.

 

A lot of people think that that issue might not be reached in this case. Although, the Court did grant this case, and it could reach it if it thinks that this is really a neutral and generally applicable policy and no exemption would be allowed under Smith.

 

The plaintiffs say, "Well, Smith was wrong, and you really should consider whether that's the case that every neutral and generally applicable policy is not going to be subject to the type of religious exemption that the Supreme Court itself recognized were often required before the Smith decision."

 

      I think I will stop it there. There's a lot more to be said about this case, and it's an oversimplification, but I think we're running into our Q&A period, so with that, I will kick it back to Nick. Thank you.

 

Nick Marr:  Great. Thanks, Anthony. We already have a couple lining up, so we'll go to our first caller right now.

 

Caller 1:  Thanks very much for this afternoon's panel. A fascinating discussion. I have hopefully what's a quick question about the Philadelphia case.

 

I'm curious if there may be another First Amendment issue in there related to viewpoint discrimination. And just to sort of modify the hypothetical a little bit, instead of a religious organization, let's imagine it's a psychologist, let's say, who disagrees with determinations that have been made under the DSM-III and IV and doesn't believe that there's a scientific basis for the changes that were made there modifying diagnoses of same-sex attraction or even the continuing issue of gender identity.

 

So there's no religious implication involved to claw on religion, but they simply disagree with the facts at issue. As far as I know, there's still legitimate question about the biological issues associated with that. Is there possibly a different free speech implication associated here?

 

David Raimer:  It's an interesting question. I think that probably falls under the compelled speech challenge that they're bringing. They're not being prohibited from saying anything, so usually a viewpoint discrimination challenge would be certain types of speech are prohibited.

 

      They are being required affirmatively to certify parents as suitable. Obviously, that has a viewpoint discriminatory element to it in that if you disagree, you still have to certify based on the city's criteria. So I think it kind of fits in. It's obviously privileging that viewpoint by making you affirmatively agree with it when you certify the family as a suitable home for children.

 

I think what really is underlying the issue is whether these people are in the position of private individuals speaking out or whether, by virtue of agreeing to participate in the state program and work with the city on this, they are essentially acting as a mouthpiece of the state; the state has hired them to do this work, so they're not really private individuals exercising their own First Amendment rights. I think you're going to see a lot of wrangling about that in the litigation.

 

Of course, the plaintiffs are taking the position they're not state employees, certainly. They're not agents of the state. They still are exercising their own expressive opinion when they are doing this. So that's going to be a major issue. Absolutely.

 

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

 

Catherine Urbanek:  Hi, my name is Catherine Urbanek. I'm the president of the Pepperdine Federalist Society.

 

Last year, we had Solicitor General Noel Francisco come and speak, and he said that the greatest threat to the Constitution right now was taking the form of the attack on religious liberty.

 

I'm wondering, looking at especially the Little Sisters of the Poor case where it seems like it is really just blatantly hostile, at this point, to keep coming after this one particular organization.

 

What do you think is behind this attack on religious liberty that seems to be occurring so frequently now, especially with, for example, you can protest but you can't go to church kind of things with COVID? And is this something that you think we're going to continue to see in the coming years or if it will recede?

 

David Raimer:  This is David. Since you mentioned Little Sisters, and I'm a Pepperdine alum myself, I thought I'd chime in. That's obviously a broad question, and a lot of people have a bunch of different theories on why or how there seems to be more instances of this.

 

      I think one thing on the positive side is one reason you see more of this sort of litigation is that there is, in fact, a very robust system of law—whether it's the First Amendment, whether it's RFRA, whether it's state law equivalents—that allow religious organizations and religious individuals to defend themselves in court when they are required to do something that would otherwise violate their religious beliefs or prevent them from exercising their beliefs.

 

      What you have is organizations and individuals taking advantage of that robust system of law. Beyond that, I think there's a larger cultural sense in which, at some level, religion isn't necessarily seen by all as one of the first freedoms in the First Amendment, and it's more seen as a matter of preference, like your favorite ice cream flavor or something like that. If you like chocolate and I like vanilla, why should I be required to adhere to your wishes in any particular circumstance?

 

      So that's some of the backdrop, I think, but the good news is that there are these sorts of robust protections. If you look at the track record at the Supreme Court recently, it's been very favorable to religious organizations.

 

[CROSSTALK]

 

Victoria Dorfman:  Sorry, David, [inaudible 49:54]

 

David Raimer:  Yeah, that’s good.

 

 

Victoria Dorfman:  I was going to pick up on the last point you made, which is whether the track record has been really good. I think taking the ministerial exception cases is one example. Courts around the country more or less converged on when the ministerial exception applies, courts of appeals. And then, the Ninth Circuit did its own thing, which was completely crazy.

 

Maybe in other times, that would have not been the only court of appeals who would've taken that position, or the Supreme Court would not have resolved the conflict as decisively.

 

But I think there definitely have been very helpful opinions. More broadly, to go back to my point about religious autonomy, the Court has been making—various members of the Court sometimes and the concurrency sometimes in majority opinions—have been speaking broadly about the importance of religious autonomy, which has many components.

 

      That, in turn, serves as the basis for challenging other laws, other regulations down the line. So the Court, obviously, speaks more broadly than the controversies before it and, I believe, in quite helpful terms.

 

      I'm taking a somewhat more optimistic view of the current situation.

 

Catherine Urbanek:  Thank you both.

 

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

 

Caller 3:  Hi. I was wondering if you have any intel on what you think SCOTUS is likely to do with the RLUIPA cert petition in Rabbinical College v. Pomona?

 

David Raimer:  This is David. I, unfortunately, don't have any intel on that front. I don't know if either of my colleagues do.

 

Victoria Dorfman:  No. I think the file is [inaudible 00:51:56] who knows.

 

Anthony Dick:  I just happen to have a little bit. This is Anthony. I know that the Supreme Court just called for a response in this case, if it's the one I'm thinking of. This is Tartikov, the Rabbinical College of Tartikov v. Pomona, New York?

 

Caller 3:  Yep.

 

Anthony Dick:  Yeah. I believe the Supreme Court just called for a response in this case to the petition this week. That's never a guarantee of anything that's going to happen, but the way it works is after a cert petition is filed, the other side has a chance to respond. And if they don't, the Supreme Court can just deny the case outright, or it can call for a response.

 

      In this case, they called for a response just on August 27, which gives the city until September 28 to respond. So it indicates that at least one justice up there on the Court is interested in the issue and seen it and said, "I'd like to see what the government has to say about it."

 

      I'd say the majority of cert petitions are denied even after there is a call for a response, but the fact that there is a call for a response puts this one in a better category than many.

 

Caller 3:  Awesome. Thank you.

 

Nick Marr:  We don't have any callers in the queue right now, and we're close to the end of the hour. I'll just throw in a quick question. It might be for a longer discussion, but this is directed towards Anthony because it's about Espinoza, but anyone can jump in.

 

      You mentioned the wall of separation, and there wasn't a whole lot done in Espinoza about the Establishment Clause, but Justice Thomas' concurrence was about the Establishment Clause, and Justice Gorsuch joined him.

 

      I'm wondering if you could speak a little to what extent is Espinoza going to matter in terms of the Establishment Clause, and how do you see the justices shifting in the future, if at all, based on that case and that concurrence?

 

Anthony Dick:  Yeah, it's a good question. I think it matters quite a bit. The classic tension is the Establishment Clause places limits on how much the government's able to support religious groups because you don't want the government propping up a religious group to the point that it becomes an established church. So there's a limit on government support for religion to some extent.

 

      On the other side, you've got the concern about discriminating against religion. So you can't cut off religious groups from generally available benefits just because they're religious. That's what Espinoza is about, and that's got to be true at some level.

 

      I think everybody acknowledges you couldn't cut off police and fire protection for a church because you don't want to provide government support to the church. There's a constant push and pull, and the Supreme Court has talked about playing the joints—some things might be prohibited and some things might be required, but there should be some middle area where maybe some subsidies the government could choose whether or not to provide.

 

      I think Espinoza is important because it shores up one side of that and says the concern about government endorsement and support of religion has really moved so far, after the 1960s, in the direction of driving religion out of the public square that that shouldn't be allowed to be given free reign or you end up with, essentially, discrimination against religion.

 

      In a case like this, there's no real serious concern that they were establishing religion in Montana by allowing these tuition scholarships to be available on equal terms. So I think it's reinjecting some common sense into things; that we're a long way from the type of historical abuses that we were worried about when we put the prohibition on established religion into the Constitution.

 

      The hallmarks of establishment—there's some good scholarship on this by my former professor and Judge Michael McConnell. The hallmarks of establishment that we were worried about were things like coercion and punishment and compelled support for certain types of religion, which is really a far cry from what we've got.

 

      I think, as a result of Espinoza, you just have some restoring of balance to these two sides of the concern, and I think a lot depends, obviously, on the composition of the Court going forward. But I think things are looking generally pretty good for the near term anyway.

 

Nick Marr:  Thank you. Since we're coming up on the hour, I'll offer a chance for any closing remarks that any of the three of you might have before we close out this afternoon.

 

Victoria Dorfman:  I just want to just say again thanks everyone for joining us, and this is actually a two-part series our Jones Day colleagues will be offering.

 

      Second part, I believe, on September 10—correct me—and they'll talk about the topics of abuse litigation against religious organizations and Chapter 11 issues that are related to that. Watch out for announcements. Those are really interesting and very important issues as well.

 

Nick Marr:  That's right. This is the first part, as Victoria mentioned, in a two-part series. Join us again on September 10, Thursday, at 1:00 p.m. We'll be discussing those issues in the second part of this series.

 

I want to thank you all for joining us today. On behalf of The Federalist Society, I want to thank the audience for calling in and our experts for the benefit of their valuable time and expertise today.

 

As a note to the audience, we welcome listener feedback by email at [email protected]. As always, please be sure to keep an eye on your emails and on the FedSoc website for upcoming teleforum calls. Thank you all for joining us this afternoon. We are adjourned.

 

[Music]

 

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.