The approach of the official end of the judicial term in the US Supreme Court has seen a number of important law and religion-related decisions handed down in the last week. We have seen decisions relating to access to abortion; to whether the US government can require religious bodies to fund abortion and contraception; to the provision of state funds for religious schools; and to the question of whether discrimination law can be applied to teachers of religion at religious schools. (And all of those are in addition to the other recent major decision in Bostock on sexual orientation and gender identity discrimination, which I have noted previously.)

Each of the four cases here would warrant (and no doubt will produce) detailed academic commentary. But here I will simply flag the case and the general outlines of the reasoning for those who want to read more.

Abortion rights

Abortion is a hotly contested topic. It is of course possible to oppose unlimited abortion rights from a non-religious perspective. But the questions involved at the intersection of the meaning of human life and sexual morality involve deeply held religious views, and so not surprisingly this area continues to raise “law and religion” issues.

1. Limiting the right to abortion- June Medical

In June Medical Services LLC v Russo  (No 18–1323; June 29, 2020) the question was whether the law of Louisiana could validly require that abortions could only be provided by doctors with “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.” By a 5-4 majority the Supreme Court held that the law was invalid. A previous decision, Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016), had ruled that a very similar Texas law was invalid. Four members of the majority in Russo agreed with that reasoning (Breyer, Ginsburg, Sotomayor and Kagan JJ). Roberts CJ, who provided the 5th and crucial vote declaring the law invalid, did so despite having dissented in Whole Woman’s Health and continuing to believe it was wrongly decided. His Honour took the view that the doctrine of stare decisis (that previous decisions should stand) meant that he was obliged to uphold the former case.

In broad terms, the plurality decision in Russo was that the law placed an “undue burden” on a woman’s constitutional right to terminate a non-viable pregnancy. Four members of the court dissented (Thomas, Alito, Kavanaugh and Gorsuch JJ). They did so for varying reasons. But Thomas J in particular gave a strong dissent because he rejected the holding in the seminal decision of Roe v. Wade, 410 U. S. 113 (1973) that such a constitutional right could be found in a “right of privacy” discerned from “constitutional penumbras”.

As most interested in this area will know, challenging the authority of Roe v Wade has been a key goal for many religiously-motivated parties for some time. Many have hoped that the appointment of “conservative” Justices to the Supreme Court by the current President will achieve that goal. Currently 5 members of the Court were appointed by Republican Presidents (Roberts CJ, and Thomas, Alito, Gorsuch and Kavanaugh JJ). But despite the strongly political appointment process, Justices take their duty to decide cases according to the law very seriously, and sometimes do not vote in ways that may be consistent with their private preferences. Here Roberts CJ disappointed many conservatives by refusing to depart from the authority of Whole Woman’s Health. Whether there will be a case in which the authority of Roe can be directly challenged, and how the Justices will vote if such arises, are still open questions.

2. Requiring religious groups to fund abortion

In Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania (No. 19–431; July 8, 2020) the issue was whether regulations made by Federal authorities exempting an employer that “objects . . . based on its sincerely held religious beliefs,” “to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services” (82 Fed Reg 47812) were valid. These regulations were made under the Patient Protection and Affordable Care Act of 2010 (“ACA”), which generally requires employers to pay to provide women with “preventive care and screenings” without “any cost sharing requirements.” 

In a previous decision, Burwell v Hobby Lobby Stores, Inc, 573 U. S. 682  (2014), the Supreme Court had held that the effect of the Federal Religious Freedom Restoration Act of 1993 (“RFRA”) was that government rules could not require a “closely held corporation” (there a small family company) to pay for procedures that involved termination of existing pregnancies, as this involved a substantial burden on the religious freedom of the company and its owners, which was not justified in the circumstances.

The Little Sisters of the Poor are an order of Roman Catholic sisters who conduct poverty relief. They were one of many religious groups that, while they had an exemption from providing medical procedures they deemed to be contrary to their religious beliefs, including not only abortion but also contraception, nevertheless objected to the procedures required under the ACA to allow them to access the exemption. In response to Hobby Lobby and to other comments of the Supreme Court in an interim decision in Zubik v. Burwell, 578 U. S. ___, ___ (2016), the Federal authorities crafted the exemption rules in question so that the Little Sisters did not have to prepare paper-work that they saw would have made them complicit in providing these medical procedures. Two State governments sued, claiming that the regulations were not authorised by the ACA.

The Court here held that the regulations made by the Government were valid, by a 7-2 majority (Ginsburg and Sotomayor JJ dissenting). The primary reason given by the majority judges was simply that the legislation, the ACA, had given a very wide discretion to the Government to craft rules, and the rules did not go beyond that discretion. Five members of the Court, however (Thomas J writing the main judgment, supported by Roberts CJ and Alito, Gorsuch and Kavanaugh JJ) explicitly ruled that the Departments concerned were correct to “take into account” the religious freedom issues arising under the RFRA. Two of those Justices (Alito and Gorsuch JJ) went further and held that the RFRA actually mandated the type of exemption that the rules gave.

On the other hand, two Justices who concurred in the majority ruling (Kagan and Breyer JJ) did so only on the basis that courts should generally defer to decisions of administrative bodies given discretion by Congress (applying Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)). And they explicitly said that there was still an issue as to whether the rules were properly justified or not, hinting that this matter could still be challenged in lower courts. So it seems that the Little Sisters may still have a further battle to fight in the future.

The bottom line in this case is that, for the moment, the wide recognition of religious freedom of employers supported here depends very much on the political complexion of the Government in Washington. Should the administration change, the rules may change, unless and until a majority of the Supreme Court is prepared to hold that religious freedom concerns under the RFRA (or under a possible view of the First Amendment presently precluded by the Smith case) require such full protection.

Religion and Schools

One of the key features of religious freedom is the right of parents to see that their children are educated to learn the truths of their religion. But in a pluralistic society decisions need to made about how public resources and generally applicable rules apply to religious schools.

3. Can the State provide funds for religious schools?

One of the issues that has generated controversy is whether the State can provide funds that support the operation of faith-based schools. This issue was addressed in Espinoza v Montana Department of Revenue  (No. 18–1195; June 30, 2020). Montana provided tax credits to those who donated money to award scholarships for private school tuition. But a provision of the Montana State Constitution barred government aid to any school “controlled in whole or in part by any church, sect, or denomination” (Art. X, §6(1).) The government enacted a rule preventing credits being given for support to religious schools. Parents who wished to use scholarships at a Christian college sued to invalidate the exclusion.

By 5-4 (Roberts CJ writing for the Court, with Thomas, Alito, Gorsuch and Kavanaugh JJ) the Court ruled that denying a state benefit to religious schools, simply because they are religious, is a breach of the free exercise clause of the US Constitution. The decision built on an earlier case, Trinity Lutheran Church of Columbia Inc. v. Comer, 582 U. S. ___, ___ (2017), where the Court held that a scheme which provided assistance to preschools for playgrounds could not deny assistance to a church-run preschool. Here in Espinoza it was conceded that the funds would be used in a way which would assist in religious teaching, but the majority held that it was still a breach of the “free exercise” clause to deny benefits to an institution on the basis of its religious character. As Roberts CJ for the majority put it (quoting the earlier Trinity Lutheran decision):

disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny”

Roberts CJ, Espinoza, slip op, p 8

In his interesting concurring judgment, Alito J reviews the background to the introduction of the relevant clause in the Montana Constitution, noting that it was modelled on an attempt to introduce a similar clause (the “Blaine Amendment”) into the US Constitution. While that amendment to the Federal Constitution failed, a number of States enacted similar laws, and Alito J reviews the history which shows that they were motivated by strong anti-Roman Catholic bias. There is also an interesting concurrence from Gorsuch J which makes the point that the discrimination here could be seen as discrimination based on the school’s religious activities as well as on its “identity”, and that both types of discrimination would breach the “free exercise” clause. This point is one that may have to be revisited in future cases.

In passing, it is worth noting that in Australia we settled a related issue many years ago in what is known as the “DOGS” case (“Defence of Government Schools”), when the High Court ruled that aid to religious schools for the teaching of “secular” courses did not breach the “establishment” clause of s 116 of our Constitution: see Attorney-General (Vic); Ex Rel Black v Commonwealth (“DOGS case”) [1981] HCA 2; (1981) 146 CLR 559. We have not had a case where the denial of public funds to a religious school has been challenged as a breach of our free exercise clause, but if we did it seems arguable that the decision in Espinoza should be followed here.

4. Does discrimination law apply to teachers of religion at a religious school?

Finally, in Our Lady of Guadalupe School v Morrissey-Berru  (No. 19–267; July 8, 2020) the Court had to consider the question whether discrimination laws applied to teachers employed at a religious school whose jobs include religious education and taking part in religious ceremonies. Ms Morrissey-Berru claimed that she had been dismissed from the Roman Catholic Our Lady of Guadalupe School (“OLGS”) contrary to a law forbidding age discrimination. In a conjoined proceeding Ms Biel claimed that she had been dismissed from St James School after a breast cancer diagnosis, contrary to the law forbidding disability discrimination.

Both teachers had substantial religious education responsibilities at their schools; as the headnote sets out

Each taught religion in the classroom, worshipped with her students, prayed with her students, and had her performance measured on religious bases.

In a previous case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), the Court had unanimously held that the First Amendment “free exercise” clause supported what was called a “ministerial exception” to discrimination laws (or perhaps to employment rules generally) which applied to those who were “ministers of religion”. The question in OLGS was whether the teachers here could be regarded as “ministers” for the purposes of this rule.

By a 7-2 majority (Sotomayor and Ginsburg JJ dissenting), the Court ruled that these teachers were relevantly “ministers,” and the ministerial exception meant that their discrimination claims could not succeed. 

Alito J, writing for the Court, noted that past decisions of the Court supported a free exercise principle against state interference with the running of religious groups: that the law will

protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles. 

Alito J, OLGS, slip op p 13.

His Honour emphasised that the key issue is the importance of the role of the person in carrying out the educational goals of the religious group, and other matters (such as whether they bear the formal title of “minister” or “priest” or “rabbi” or “imam”) are subsidiary to this main question. Here both teachers played a key role in religious education and hence the exception applied.

It has to be said that, from an Australian perspective, this decision goes well beyond what an Australian court would be likely to find. Here we do have a well-established tradition of spelling out “balancing clauses” in specific discrimination laws that recognise important religious freedom interests. Thus in the Federal Sex Discrimination Act 1984 (Cth) we have sections 37 and 38 which recognise that religious groups often have doctrines about the roles of men and women, or sexual morality, which need to be accommodated in general law. But we have no such “religious balancing clause” in the Federal Disability Discrimination Act 1992 (Cth), nor, so far as I am aware, is there any call for such. And while there is (somewhat oddly) such a provision in the Age Discrimination Act 2004 (Cth) s 35, it seems likely that it is simply intended to recognise that some religious groups confer “adult” status on young people at different ages. It does not amount to a general exemption from age discrimination laws altogether.

However, each of these four cases from the final court of appeal in the United States of America illustrates that the intersection of religious freedom and rights with other laws can be a complicated business, and provides a fascinating resource for arguments that can be made on these matters in Australia and other countries.