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This Dark Cloud Is Hanging Over Religious Liberty After the Latest Supreme Court Term

07-10-2020
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As a legal defender of religious liberty, Luke Goodrich has had a busy time with the US Supreme Court. The Becket Fund attorney and author of Free to Believe: The Battle Over Religious Liberty in America sees this most recent term that just wrapped up as one filled with tremendous wins, but notes one decision that forms a dark cloud for people of faith in the days and years ahead.

“Considering that my firm, the Becket Fund, just got two huge victories from the Supreme Court Wednesday, I’m feeling really great about the term, on the whole. But not every case was uniformly positive,” he told CBN News.

The Faithful, Not the Government, Should Control Who Teaches the Faith

Top of his mind, though, were those clear wins. One was the 7-to-2 affirmation by the high court that institutions like churches and religious schools should be allowed to pick who’ll teach the faith and pass it on, unencumbered by government intrusion.   

Two teachers who’d been let go by two Roman Catholic schools in California sued, claiming discrimination. But the Court unambiguously ruled their hiring and firing by the schools was covered under the “ministerial exception” – the legal doctrine that states those of the faith should be in charge of who ministers the faith.

But the case the Court took up that gave Goodrich particular joy? “The long-running battle of the Little Sisters of the Poor,” he said.

“About seven years ago during the Obama administration, the government issued a regulation that would require most organizations to include contraception and abortion-causing drugs in their health insurance plans,” Goodrich explained.  

Obey & Sear Their Conscience or Disobey & Face Devastating Fines

But the Little Sisters, an order of Catholic nuns who devote their lives to caring for the elderly poor, took the new regulation to court. Because, on one hand, their collective conscience forbade them to have anything to do with threatening unborn lives, so morally they couldn’t comply with that regulation. And, on the other hand, if they refused to comply, they would face fines of something like 70 to 75 million dollars a year – a sure death blow to their ministry.

Goodrich said of Becket and the nuns, “We went up to the Supreme Court once. And the Court basically told the government ‘surely you can find a way to provide access to contraception without Catholic nuns.’ And then the Trump administration issued a good rule that protected the Little Sisters of the Poor. That should have been the end of the matter.”

But it wasn’t. As the attorney and author explained, “Unfortunately the state of Pennsylvania then challenged the religious protection for the Sisters. And that went all the way up to the Supreme Court. And Wednesday, the Supreme Court in a 7-to-2 ruling, said that the government had authority to exempt the Little Sisters and to protect them from the contraception mandate. So that was a great win.”

What Could Force the Nuns to Go Through All This Again

What the Little Sisters now must consider is how a change in the White House could take them right back to Court.

Goodrich noted, “Vice President Biden said Thursday he was contemplating reverting back to the old Obamacare regulation. But the good thing about Wednesday’s decision: two justices argued that doing that would be a clear violation of religious freedom protections. And even in the majority opinion, there are a number of bread crumbs, so to speak, or foreshadowings that reimposing that old mandate would probably be an uphill battle. So maybe we’re not fully out of the woods yet. But Wednesday was a great, great victory for the Little Sisters of the Poor.”

The Radical Redefining of 'Sex'

On the flip side, the high court’s June ruling in the Bostock case radically redefined what “sex” means. It presents potential problems of a huge legal nature as the Court has now made firing homosexuals or transgenders sex discrimination.

“The Supreme Court decided a trio of cases under the name of Bostock on the question of sex discrimination in employment. And the Court adopted a sort of odd interpretation of federal employment discrimination law,” Goodrich said.

This huge change applies to Title VII of the Civil Rights Act of 1964 which prohibits employers from discriminating on the basis of race, color, religion, sex and national origin.

The Dark Cloud: Bostock ‘Could Greenlight a Lot More Lawsuits’

“The new bottom line means that individuals can sue their employers, alleging either sexual orientation discrimination or gender identity discrimination,” Goodrich explained. “And for religious organizations…there are tens of thousands of religious organizations across the country that expect their employees to uphold their religious teachings about human sexuality. So, in one sense, Bostock could greenlight a lot more lawsuits by former employees against religious employers.”

That’s the dark cloud Goodrich sees. 

“But the silver lining of the Bostock decision majority opinion noted there are very important religious protections for religious employers. It cited three,” the lawyer stated.  

“One is a religious exemption in Title VII that says religious groups can make religious decisions in hiring and firing. So that’s very strong protection. The second was the ministerial exception, which we just won a huge victory on that for Catholic schools Wednesday,” Goodrich noted. “And then the third is the Religious Freedom Restoration Act, which was at issue in the Little Sisters of the Poor case.”  

“So certainly Bostock opens the door to a number of lawsuits that could be troubling to religious organizations,” admitted Goodrich. “But there are still very strong protections for religious organizations. And I’m very optimistic that the Supreme Court will recognize the right and authority of religious groups to hire and fire in accordance with their religious mission.”

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