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Virus Leads Supreme Court to Put Important Religious Liberty Cases on Hold

04-07-2020
Supreme Court of the United States at Sunset

Important religious liberty cases are on hold as the COVID-19 virus has led the U.S. Supreme Court to cancel hearings at least into May, maybe longer.

One case already heard is actually three cases lumped together (Altitude Express v Zarda, Bostock v Clayton County and Harris Funeral Homes v EEOC) in which three fired employees say they were let go because of either their sexual orientation or gender identity.  They want that to be branded employment discrimination because the federal government’s Title 7 forbids discrimination based on sex. The three plaintiffs are asking “sex” to be changed to include sexual orientation and gender identity.

Religious Objections Abound

This may not seem like a religious liberty case, but Luke Goodrich at the religious rights defense group Becket argued it is for numerous churches, ministries, and businesses run by people with deeply held religious beliefs.

“There are tens of thousands of religious organizations across the country that have long-standing beliefs about human sexuality and they often expect their employees to live in accordance with those beliefs,” Goodrich stated.  “So they may expect their employees to refrain from sex outside traditional marriage or expect employees to live in accordance with their biological sex.”

Such organizations have been fine up until now.   But Goodrich said, “If the Supreme Court agrees with the plaintiffs in these cases…then all these religious organizations will suddenly be exposed to new lawsuits and new potential liability.”

So imagine the possibility of tens of thousands of court fights much like the long legal war over the Masterpiece Cakeshop supposedly discriminating when it refused to make a cake celebrating gay marriage.

In a normal year, a ruling would probably have already been handed down.  That is now up in the air.

Catholic Nuns Dragged Back Into Court Again

A case scheduled to be heard April 29th but bumped to some future unknown date is Little Sisters of the Poor v Commonwealth of Pennsylvania.  

Obamacare’s contraceptive mandate was going to force this organization of nuns serving the elderly and poor to cover contraception – including abortion-inducing drugs – in its health plan for all its employees.   The nuns objected, insisting their religion forbids them to aid abortion in any way, and the Supreme Court ruled for them, leading the federal government to give Little Sisters a religious exemption.

But then several states, including Pennsylvania, sued, saying it's illegal for the federal government to exempt the nuns’ organization and it must, therefore, force the nuns to comply with the contraceptive mandate or pay the tens of millions of dollars in fines that Obamacare levies on those that won’t comply.   The nuns are asking the Supreme Court to once again protect them.

‘Frankly Silly Saga’

Becket President Mark Rienzi badmouthed all these suits the Little Sisters have faced, lumping their efforts together as, “This frankly silly saga that’s gone on for eight or nine years, with the federal government and at times state governments pretending that they need nuns in order to give people contraception – which has always been a wacky argument and a bad position for the government to take.”

“The goal of those lawsuits and the government’s position in those cases previously has been to say, ‘Sister, if you don’t do what I tell you to do, we will fine you somewhere in the area of 70 or 75 millions dollars a year,’” Rienzi explained.

The Supreme Court has always protected the Little Sisters from those onerous fines, which is fortunate because such fines would levy a vicious blow to the charitable work the nuns do.

As Rienzi put it, “That would be 75 million dollars which is ordinarily used to provide care for the elderly at the end of their lives or people who are very poor, and it would be money going to the IRS.”

Should the Government Decide Who Teaches Religion?

Becket is involved in another couple of cases (Our Lady of Guadalupe School v Morrissey-Berru and St. James Catholic School v Biel) rolled into one in which two different Catholic schools both let go a fifth grade teacher.  Both teachers have sued, alleging discrimination.   But the schools argue a thing known as the ministerial exception allows religious institutions to choose who they can fire or hire when it comes to the teaching or passing on of their religion.

Goodrich insisted, “These are very important cases about the freedom of religious organizations to choose who will teach the faith to the next generation.”

He continued, “If you didn’t have the ministerial exception, you could have courts issuing orders requiring religious schools to reinstate religious teachers.   So you have the government appointing people who are teaching religion to the next generation.”

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Both teachers seek monetary damages.  If they get that, Goodrich told CBN News, “It’s basically the government penalizing religious groups and saying ‘you should have kept this person as a religious teacher.’”

These cases were scheduled to be heard on April 1, with no new date yet chosen.

Future Case that’s Hurting Foster Kids Right Now

As the pandemic forces the Court to cut hearings, for now, that could lead it to move some of this term’s cases into next term, and thus have to bump some of the next term’s cases further down the calendar.

That could happen to next term’s Fulton v City of Philadelphia.   At the center of that case is Catholic Social Services, which for 100 years has been placing foster children with families in Philadelphia.  In all that time, Catholic Social Services had never been asked by any homosexual couples to let them care for foster children.   But when Philadelphia discovered Catholic Social Services wouldn’t do such placement because of its religious beliefs, the city cut off its contract with the Catholic organization.

So until this case is settled, real harm is being done.  Rienzi’s Becket is fighting for Catholic Social Services.

He explained, “There’s no such thing as private foster care in Philadelphia.   The city of Philadelphia basically has a monopoly over and runs the entire foster care system.   If you want to serve foster kids in Philadelphia, you must partner with the city.”

Rienzi said of Catholic Social Services, “The city cut them off from all new placements in the spring of 2018, even though there’d never actually been any complaints against them.  They’d never actually turned anybody away.  They have a bunch of families who are ready and willing to help with foster children.   But the city is refusing to place children with those families because they work with Catholic charities.”

“That’s a real ongoing harm to the agency,” Rienzi insisted.  “It’s a real ongoing harm to those families who’ve signed up to do the very noble work of fostering.   And it’s a real ongoing harm to a bunch of kids whose names we don’t know, because Philadelphia doesn’t have enough foster families right now, and they are deliberately refusing to work with the ones who work with Catholic charities.” 

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