Supreme Court Expands Religious Impunity

Two rulings greatly expand the ability to evade the law for on Free Exercise grounds.

Religion VS Politics

In two separate cases today, at least one liberal Justice joined the conservative bloc in Free Exercise disputes.

WaPo (“Supreme Court says employers may opt out of Affordable Care Act’s birth control mandate over religious, moral objections“):

The Supreme Court ruled Wednesday that the Trump administration may allow employers and universities to opt out of the Affordable Care Act requirement to provide contraceptive care because of religious or moral objections.

The issue has been at the heart of an intense legal battle for nine years, first with the Obama administration sparring with religious organizations who said offering contraceptive care to their employees violated their beliefs, and then with the Trump administration broadening the exemption, angering women’s groups, health organizations and Democratic-led states.

Wednesday’s decision greatly expands the ability of employers to claim the exemption, and the government estimates that it could mean that 70,000 to 126,000 women could lose access to cost-free birth control.

“We hold that the [administration] had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” wrote Justice Clarence Thomas, who was joined by Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

The decision sent the case back to a lower court and instructed it to dissolve a nationwide injunction that had kept the exception from being implemented.

Liberal Justices Elena Kagan and Stephen G. Breyer agreed with the court’s conservatives that the administration had the right to create an exemption, but said lower courts should examine whether the decision to create this one was arbitrary and capricious.

Justice Ruth Bader Ginsburg issued a blistering dissent, in which she said her colleagues had gone too far to appease religious conservatives.

Until now, “this court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” Ginsburg wrote in a brief joined by Justice Sonia Sotomayor.

As a matter of policy, I agree with Ginsburg. But the fact that the core ruling was 7-2, with even Kagan and Breyer signing off, demonstrates that it was consistent with recent precedent.

I agreed with the reasoning but not the outcome in the Hobby Lobby case, which is the obvious controlling precedent. My objection there was as to scope: Hobby Lobby isn’t a mom and pop operation and is simply too big to allow the founder’s religious views to matter.

Here, though, the precedent had been set. The Obama administration had rather narrow carve-outs for churches and church-affiliated groups. The Trump administration radically expanded the carve-out. Provided that they crossed their i’s and dotted their t’s (which they frequently don’t), they’re entitled to exercise the same discretion as their predecessor.

A related ruling also came down.

WaPo (“Supreme Court affirms ‘ministerial exception’ that protects religious organizations from some lawsuits“):

The Supreme Court on Wednesday said two parochial school teachers could not contest their firings in federal court because of the constitutional protection allowing religious organizations to choose who teaches the faith.

The 7 to 2 decision affirms the “ministerial exception” that protects religious organizations from some lawsuits invoking federal anti-discrimination laws. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Judges on the U.S. Court of Appeals for the 9th Circuit in San Francisco had said two teachers could proceed with their lawsuits against Catholic schools in California.

One teacher alleged age discrimination, and another, now deceased and represented by her husband, said she was fired after informing the school that she had breast cancer.

That’s simply unconscionable. On what basis did they lose, 7-2?

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Justice Samuel A. Alito Jr. wrote for the majority.

“Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

It would seem obvious to me that, to qualify for a ministerial exception to public policy, the church would need to at least supply a ministerial rationale. It would be perfectly reasonable for an evangelical school to fire a teacher who came out as gay or a Catholic teacher who converted to Buddhism. But, unless there’s a biblical teaching requiring teachers to retire at a certain age or that breast cancer is, say, evidence of demonic possession, what’s the ministerial issue? And, indeed, the school offered none, simply that it would be disruptive and frightening for the kids to have substitute teachers and/or seeing their teacher dealing with the illness.

But, whatever the merits of my logic, the Supreme Court has been clear: churches have full autonomy in firing ministerial employees. The only question is what constitutes a ministerial employee. And they decided unanimously in a 2012 case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that teachers are ministerial employees, even if they don’t teach religious classes.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Monala says:

    As I wrote on the open thread, as a woman who had a high-risk pregnancy, and chose as a result to have no more children (even though I wanted more) – I am outraged that an employer can decide that it’s their business.

  2. OzarkHillbilly says:

    Must be a slow day for you James. This is your 6th post today, not counting the open forum.

    About all I have to say about this is an organization has a lot more rights if they wrap themselves in the robe of religious dogma than if they don’t. I guess not all men are created equal after all.

  3. Scott says:

    So the two cases combined will allow schools interfere in teacher’s lives by investigating whether they use birth control.

    My Sister in Law just wrote one word: Lysistrata

    One unoriginal thought: Decouple healthcare from employment.

  4. James Joyner says:


    Must be a slow day for you James. This is your 6th post today, not counting the open forum.

    I really should be getting more substantive writing done for work.

  5. SKI says:

    The combination of these decisions with last week’s essentially places religious organizations above the law. They get to benefit from societal funds like secular organizations but are in no way restricted the same way as those secular organizations to the requirements of those laws.

  6. HarvardLaw92 says:


    Agreed. This is a profoundly disturbing ruling.

  7. James Joyner says:

    @HarvardLaw92: Aside from “More Justices appointed by conservative Republicans,” I’m honestly not sure how we got here.

    The Lemon Test was already somewhat outmoded even when I studied ConLaw as an undergrad 30-odd years ago. But the central concept, as I understood it, was that government could regulate religious entities so long as there was a legitimate, secular purpose and the law applied equally to all.

    I’m even fuzzier on business law but we’ve always treated small businesses (under X number employees) differently than big ones. Yet, Hobby Lobby treated a massive chain like it was Preacher Jim’s side hustle.

  8. S. J. Paladin says:

    Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

    Same Sotomayor and ArchLich Ginsburg who dissented in Schuette v. Coalition to Defend Affirmative Action that 14th Amendment only protect minorities.

  9. wr says:

    @James Joyner: “I really should be getting more substantive writing done for work.”

    As someone else using this forum to avoid getting more substantive writing work done, I thank you for your procrastination!

  10. HarvardLaw92 says:

    @James Joyner:

    Correct. Lemon provides for three prongs:

    1) The statute has to have a secular legislative purpose (Purpose)
    2) The principal / primary effect of the statue has to be neutral with respect to religion (Effect)
    3) The statute must not result in an excessive government entanglement with religion. (Entanglement)

    Violation of any of the three prongs renders the statute in violation of the 1A. This was expanded and modified in Agostini v. Felton, collapsing the effect and entanglement prongs into a modified effect prong, delineated by whether the statute(s) in question promulgate government indoctrination, define the recipients of government benefit by religious affiliation / association, or result in an excessive entanglement.

    The problem with all of that is that it’s subjective. Lemon resulted in a ban on the state reimbursing parochial schools for the cost of teacher salaries, but Agostini (overturning the court’s prior ruling in Aguilar v. Felton) permitted public school teachers (paid by the state) to teach in religious schools. For practical purposes, they’re the same thing. Whether a teacher teaching in a religious school is paid by the state directly or indirectly, he/she is still being paid by the state.

    I mostly blame O’Connor (who was always a politician first and a justice second) for the mess. She never liked Lemon, strongly dissented in Aguilar, and finally got her way in Agostini thanks to Reagan appointments. The practical result is that Lemon is still hypothetically good law, but its subjective prongs (as modified by Agostini) are effectively so broad that it legitimately amounts to how many religious conservatives are on the court as to how different scenarios are interpreted with regard to what is and is not permissible. I wouldn’t expect this to be the last expansion of governmental entanglement, however odious is indeed is.

  11. senyordave says:

    A Christian school fires a teacher after she informs the school that she has breast cancer. Presumably to save the costs associated with an employee being sick. The public policy implications of this decision are truly awful.
    I like to think that people on earth will answer for their behavior in an afterlife. I would hope that the people from the school who made this decision will someday be before St. Peter, and the conversation goes something like this: “Come on, don’t waste my time. You fired a dying woman to save money, and won on a technicality. I’ll tell you what, you have sixty seconds to explain how that aligns with the teaching of Jesus. Time’s up, that’s all you got? Sorry, down you go.”

  12. JohnMcC says:

    I have no capacity to discuss the legal points and thank those who do. You’re all one of the reasons I spend so much time here. But I’ll say that ‘entangling’ religion with the activities of a state has never, ever been good for the religion. Or done much for the state either.

  13. Kathy says:

    I see benefits given to employees akin to wages paid them. That is: it’s their property given by the employer in return for their labor.

    As such, it should not be up to the employer to determine what employees want to do with their property.

    Or would the court hold it proper for an employer to fire an employee for having used their wages to buy contraceptives? or to get an abortion?

  14. sam says:

    I don’t see what, under the ruling, could prevent a church-based school from firing a “minister” simply because he or she is black.

  15. Gustopher says:


    Or would the court hold it proper for an employer to fire an employee for having used their wages to buy contraceptives? or to get an abortion?

    I believe the court would.

    And, in narrow circumstances, I would agree with them.

    Let’s say that an Evangelical Minister has an abortion, and states to the congregation that it was a good and proper thing that she did. Would that differ from the minister veering from the religious precepts in other ways? Teaching that blacks are the mud people, or that love thy neighbor is really a call to orgies?

    Finding the boundaries is really the hard part. They kind of blew it here, where they aren’t requiring a ministerial reason and restricting it to the ministry.

  16. Gustopher says:

    @S. J. Paladin: Psst — no one knows what you are talking about, so your amazing zinger of a point is lost.

  17. An Interested Party says:

    …ArchLich Ginsburg…

    Oh really? She has far more life in her than the far younger Clarence Thomas…although even this insult of yours falls flat, as archliches were good beings during their life and devoted to noble purposes even in their afterlife…

    @senyordave: It really is amazing how unchristian so many Christians are…

  18. Teve says:


    I know cruelty is the point but refusing financial coverage for hormone therapy medication makes zero sense. I took it for years to keep cysts/excessive bleeding under control with the bonus of preventing unwanted pregnancy. It was a necessary part of my health care. Wtf, people.

    In related news, I can’t wait to vote this November.

  19. senyordave says:

    @sam: I was wondering the same thing. The WaPo article says:
    The Supreme Court on Wednesday said two parochial school teachers could not contest their firings in federal court because of the constitutional protection allowing religious organizations to choose who teaches the faith.
    It doesn’t sound like it even matters if it has anything to do with the beliefs of the the faith. As far as I know there is no Christian teaching that says firing a sick person to save money is A-ok. Why couldn’t they just maintain that we didn’t want blacks teaching our kids, we’re a religious school and we don’t have to follow what the EEOC or any other governmental regulations say.

  20. JohnMcC says:

    A truism based on my personal observation: If you scratch someone who is adamantly opposed to abortion, you will find someone opposed to at least a lot of birth control.

  21. Just nutha ignint cracker says:

    @senyordave: Could be even easier than not wanting the costs involved with the teacher being sick (by which I am assuming you mean costs related to a replacement teacher and such). Having taught in private schools, I can assure you that they don’t often hire substitute teachers, an administrator covers for an absent teacher. It’s as likely that the administration decided that they didn’t want to cover classes for her.

    But they certainly wouldn’t have wanted to pay her leave AND a replacement teacher either way.

    ETA: “Or done much for the state either.”

    I dunno. I would say that consolidating the agreement of people whose teachings might alter the conduct of said state is a pretty potent inducement.

  22. Just nutha ignint cracker says:

    @sam: That seems a stretch to me. It follows that if being black wasn’t a cause to decline to hire, it shouldn’t be a cause for termination.

    On the other hand, I can easily see a whack job Heritage Foundation judge ruling that being black is exactly a cause for termination even if it wasn’t a grounds for declining to hire.

  23. Monala says:

    @Kathy: I was in my car awhile ago, listening to NPR’s report on the story. A lawyer for the plaintiffs said that this was a win for allowing religious people to freely practice their beliefs, including “their” health plans. I started screaming and swearing in the car, something I rarely do. Your employee’s health plan is not your F*ing health plan!

  24. sam says:

    @Just nutha ignint cracker:

    Justice Sotomayor in dissent:

    When it applies, the exception is extraordinarily potent: It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing [my emphasis] their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.

    I think this might be a Pyrrhic victory.