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Top Court Backs Religious Rights in Contraceptive, School Cases

July 8, 2020, 7:34 PM

The U.S. Supreme Court struck two blows for religious rights, including a decision that upholds Trump administration rules giving employers a broad right to refuse to offer birth control through their health plans.

The justices also gave religious organizations a bigger exemption from discrimination suits, throwing out bias claims filed by two teachers who were fired by Roman Catholic grade schools in California. Both decisions Wednesday were 7-2 as Justices Stephen Breyer and Elena Kagan joined the court’s five conservatives in the majority.

The decisions came as the court said it will issue the last opinions of its term on Thursday. Those will include rulings on subpoenas for President Donald Trump’s financial records from Congress and a New York grand jury.

The contraceptive ruling, which stems from an Obamacare guideline requiring health plans to include free coverage, lets Trump’s administration expand a narrower religious exemption offered under President Barack Obama. Critics say the new exemption could leave tens of thousands of women without ready access to birth control.

The ruling focused more on federal administrative law than religion. Writing for the court, Justice Clarence Thomas said the Affordable Care Act gives administrators “broad discretion” to carve out religious and moral exemptions. The law itself doesn’t explicitly mention birth control, instead requiring cost-free “preventive care and screenings” and leaving it to a federal agency to determine what’s included.

“It was Congress, not the departments, that declined to expressly require contraceptive coverage in the ACA itself,” Thomas wrote.

Ginsburg Dissent

Dissenting Justice Ruth Bader Ginsburg pointed to a government estimate that between 70,500 and 126,400 women would immediately lose access to free contraception.

“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” Ginsburg wrote.

The ruling leaves open the possibility the exemption could be narrowed if Democrat Joe Biden wins the presidential election and revises the policy.

The Trump administration issued its rules in November 2018. The new policy expands the types of employers who can claim religious exemptions to include publicly traded companies for the first time, and also applies it to universities in their student health plans. The rules also permit opt-outs on moral grounds.

In a concurring opinion, Kagan said lower courts could still consider arguments that the administration didn’t engage in “reasoned decisionmaking,” as required under federal law. She pointed to a “mismatch between the scope of the religious exemption and the problem the agencies set out to address.”

Little Sisters

The Little Sisters of the Poor, an order of Catholic nuns, helped defend the Trump policy. The Little Sisters took part even though a separate court ruling means the contraceptive mandate couldn’t be enforced against the group no matter how the justices ruled.

“Under today’s ruling, we are free to focus fully on our ministry to the elderly poor and dying,” Loraine Marie Maguire, mother superior of the Little Sisters, told reporters.

Reproductive-rights advocates decried the decision.

“Today’s ruling has given bosses the power to dictate how their employees can and cannot use their health insurance -- allowing them to intrude into their employees’ private decisions based on whatever personal beliefs their employers happen to hold,” said Lourdes Rivera, senior vice president at the Center for Reproductive Rights.

The Supreme Court stopped short of saying that the U.S. Religious Freedom Restoration Act requires the type of sweeping exemption the administration put in place. Pennsylvania and New Jersey challenged the Trump policy.

The Supreme Court’s conservative wing has been broadly supportive of religious rights in recent years. Last week a divided court bolstered the school-choice movement by ruling that states must include religious schools in programs that offer taxpayer subsidies for private education.

Teaching Religion

In the employment case, the court said the Constitution gives schools broad power to hire and fire employees who teach religion. The decision extends earlier Supreme Court rulings that shielded religious organizations from employment-discrimination claims by ministers.

“This is a big day for religious liberty, a big day for the ability of religious institutions to carry out their missions and help people,” said Eric Rassbach, a lawyer at the Becket Fund for Religious Liberty, which represented the schools in the employment case, as well as the Little Sisters.

The ruling comes weeks after the court ruled that gay and transgender workers can sue for job discrimination under federal law. The latest decision underscores an important qualification to that ruling, giving faith-based groups a broader license to ignore civil rights laws of all types, including LGBT protections.

“While the Supreme Court has made it clear that it is against the law to fire someone for being LGBTQ, today they made it easier for religiously affiliated employers to discriminate -- including against LGBTQ people,” said James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project.

Religious Duties

Agnes Morrissey-Berru was seeking to sue Our Lady of Guadalupe School in Los Angeles for age discrimination. The other suit accused St. James School in Torrance, California, of discriminating on the basis of disability when it fired Kristen Biel after she had undergone chemotherapy. Biel died of breast cancer in June, but her husband continued to press the case.

The schools said both women had important religious duties, including teaching classes about Catholicism, leading prayers and participating in mass with the students.

“There is abundant record evidence that they both performed vital religious duties,” Justice Samuel Alito wrote for the court. “As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith.”

In dissent, Justice Sonia Sotomayor said the two teachers “taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.”

She added, “The court is not only wrong on the facts, but its error also risks upending antidiscrimination protections for many employees of religious entities.”

The San Francisco-based 9th U.S. Circuit Court of Appeals had let the employment suits go forward.

Six justices -- the five conservatives, plus Sotomayor -- are either practicing Catholics or were educated in Catholic schools.

The birth-control cases are Little Sisters of the Poor v. Pennsylvania, 19-431, and Trump v. Pennsylvania, 19-454. The employment cases are Our Lady of Guadalupe School v. Morrissey-Berru, 19-267, and St. James School v. Biel, 19-348.

(Adds Thomas excerpt in sixth paragraph, reaction starting in 12th paragraph)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Laurie Asséo, Elizabeth Wasserman

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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