Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: The Supreme Court expanded religious liberties, including one that struck
Speaker 1: another blow to the contraceptive mandate in obamacarem In a
Speaker 1: seven to two vote, the Court upheld the Trump administration's
Speaker 1: expansion of the religious exemption to the mandate, giving employers
Speaker 1: a broad right to refuse to offer birth control through
Speaker 1: their health plans. It was the third time the Supreme
Speaker 1: Court has ruled in the fractious debate over the contraceptive mandate,
Speaker 1: and during your arguments, Chief Justice John Roberts expressed some
Speaker 1: frustration that neither side seemed to want to work the
Speaker 1: problem out. Well, the problem is that neither side in
Speaker 1: this debate wants the accommodation to work. The one side
Speaker 1: doesn't want it to work because they want to say
Speaker 1: the mandate is required, and the other side doesn't want
Speaker 1: it to work because they want to uh impose the mandate? Uh.
Speaker 1: Is it really the case that there is no way
Speaker 1: to resolve those differences? But just as Ruth Bade Ginsburg,
Speaker 1: who dissented in the case with Justice Sonia Sotomayor, conveyed
Speaker 1: her concern for the women who would immediately lose access
Speaker 1: to free contraception as many as one thousand, four hundred
Speaker 1: according to a government estimate. At the end of the day,
Speaker 1: the government is throwing into the wind the women's entitlement
Speaker 1: to seamless no cost to them. It is requiring those
Speaker 1: women to pay for contraceptive services. Joining me is Richard Garnett,
Speaker 1: a professor at Notre Dame Law School. In three cases
Speaker 1: involving religion, this term the decisions expanded religious liberty is
Speaker 1: the line between separation of church and state moving or blurring.
Speaker 1: So as I see it, it's worth distinguishing among these
Speaker 1: three cases in the sense that decisions involving the Catholic
Speaker 1: schools and teachers and the Ministry of Exception that case
Speaker 1: is best seen as involving and vindicating the separation of
Speaker 1: church and state. That is the if you think about
Speaker 1: what the core idea in the separation of church and
Speaker 1: state is that the government should lack the power to
Speaker 1: decide who's going to be a minister or a bishop.
Speaker 1: I mean, if you think of the oldest church state
Speaker 1: controversies that we have are when kings wanted to decide
Speaker 1: who was going to run the church and the principle
Speaker 1: that was applied in the in the school's cases today
Speaker 1: should be seen as a decision that affirmed the separation
Speaker 1: of church and state. It affirmed that secular and civil
Speaker 1: courts shouldn't be interfering or inserting themselves into essentially religious questions. Now,
Speaker 1: let's move to the Little Sister's case. That case, at
Speaker 1: this point, since been going on for so long, is
Speaker 1: really a case about administrative law and procedure. But if
Speaker 1: you scrape off the top, get down a little deeper,
Speaker 1: it is the case about whether the government's allowed to
Speaker 1: a comidate religion. But in the American tradition, we've never
Speaker 1: thought that the separation of church and state prevents accommodations.
Speaker 1: We've sometimes said that the constitution doesn't require them, and
Speaker 1: we've said in some context that even if you have
Speaker 1: a religious objection to a law, you're not constitutionally entitled
Speaker 1: to an exemption. But when legislatures or government officials crafts
Speaker 1: laws in such a way that religious people are accommodated,
Speaker 1: in our tradition, again we haven't thought that violates the
Speaker 1: separation of church and state. The case that represents, I
Speaker 1: think the most kind of striking development is the Espinosa
Speaker 1: case from Montana, which you mentioned about the blame amendments
Speaker 1: and the funding of religious schools. As you know, there
Speaker 1: was a there was a time in American constitutional law
Speaker 1: and the sixties, seventies and early eighties when people thought
Speaker 1: that the a lot of justice is thought too that
Speaker 1: the separation of church and state required that the government
Speaker 1: not fund, not even advanced in any way, even indirectly,
Speaker 1: the missions of religious schools. Now where the doctrines move,
Speaker 1: there is that so long as the government is being
Speaker 1: neutral and treating private and secular alternatives alike, that this
Speaker 1: kind of cooperation is okay. But certainly I think there
Speaker 1: are there are lines that are kind of universally recognized
Speaker 1: in addition to the to the ones that we're in
Speaker 1: the ministry exception cases. Today, all the justices would agree
Speaker 1: that the government could never require or coerce involvement in
Speaker 1: religious activities or prayer or anything of that kind. I
Speaker 1: think all the justices agree, as they should, that the
Speaker 1: government shouldn't have any role in deciding what particular churches,
Speaker 1: um liturgy or rituals or ministerial training should be. So
Speaker 1: in a sense, I think we're we're arriving at a
Speaker 1: place that is consistent with the historical understanding of what
Speaker 1: the important principle of church state separation involved, which was
Speaker 1: keeping political and religious authority distinct. And I think we're
Speaker 1: kind of moving away from the view that again was
Speaker 1: probably on offer in the nineties and seventies, which was
Speaker 1: hostile to any form of sort of cooperation between faith
Speaker 1: and the public square. Let's discuss the cases separately now,
Speaker 1: So the case involving the contraceptive mandate, the Trump administration
Speaker 1: expanded the ability to opt out of paying for contraceptive
Speaker 1: coverage from houses of worship to include publicly traded companies
Speaker 1: and universities with religious or moral objections to contraception. Tell
Speaker 1: us about that decision. The Court's ruling was focused primarily
Speaker 1: on whether or not the administration followed the correct procedures
Speaker 1: when it created this accommodation. So it's mainly an administrative
Speaker 1: law opinion. The court's opinion is not really about whether
Speaker 1: or not this exemption is a good idea. Now, as
Speaker 1: you said, the Trump administration expanded the religious exemption that
Speaker 1: the Supreme Court had affirmed in Hobby Lobby, for example,
Speaker 1: several years ago, to include entities that had quote moral,
Speaker 1: not just religious, but moral objections to providing conception coverage
Speaker 1: in their insurance policies. Reasonable people can disagree about whether
Speaker 1: that expansion is good policy. The Religious Freedom Restoration Act,
Speaker 1: which arguably does require an exemption for religious employers, wouldn't
Speaker 1: apply to employers that have moral but not religious objections.
Speaker 1: So the accommodation that was provided does go beyond what
Speaker 1: the federal religious freedom law arguably requires. But in a
Speaker 1: sense that's fine. The question is just whether the administration
Speaker 1: kind of followed the correct procedure for creating this exemption.
Speaker 1: I've been talked to professor Richard Garnett of the Notre
Speaker 1: Dame Law School about cases involving religious liberties. The Supreme
Speaker 1: Court handed down to Ricky said that the case involving
Speaker 1: the contraceptive mandate was basically an admit a strait of
Speaker 1: law case. How did Justice Thomas answer the claims that
Speaker 1: the Trump administration had not followed the correct procedures? Yeah,
Speaker 1: so there's a law called the Administrative Procedure Actors, and
Speaker 1: there's other precedents and practices that require certain pathways to
Speaker 1: be followed before administrative rules are changed. The challengers to
Speaker 1: this exemption said that the administration kind of didn't dot
Speaker 1: all the eyes and cross all the teas that were required,
Speaker 1: and Justice Thomas for the court said, yes, they did,
Speaker 1: but there wasn't any kind of unlawful departure from the
Speaker 1: procedures that are required in order for an agency to
Speaker 1: change its rules. You know, the idea here is that,
Speaker 1: you know, it's often the case, and we might well
Speaker 1: see this in a couple of months, that when a
Speaker 1: new administration comes in and has different priorities and agencies
Speaker 1: adjust the rules, we want to make sure they don't
Speaker 1: change their rules and kind of a haphazard or random fashion.
Speaker 1: And so courts do want to make sure that they
Speaker 1: follow the proper procedures. And here again, whether one likes
Speaker 1: the new accommodation or not, the question is really, well,
Speaker 1: is this administration following the correct procedure to put into
Speaker 1: place the rules that it wanted. And we've seen in
Speaker 1: some other cases the court telling the administration that it
Speaker 1: hadn't followed the proper procedures right in the in the
Speaker 1: census case or in the recent case about the DOCTA,
Speaker 1: we had instances where the court told the administration you
Speaker 1: didn't do this right. But in this case, the Court
Speaker 1: thought the administration had followed the proper procedures and that
Speaker 1: the accommodation was therefore permissible. The Court didn't say that
Speaker 1: the accommodation was required by the Constitution, just that it's permissible.
Speaker 1: Justices Elina Kiggainst. Stephen Ryer joined the majority, but Kagan
Speaker 1: wrote a concurring opinion, and she said the lower courts
Speaker 1: could still consider arguments that the administration didn't engage in
Speaker 1: reason decision making. What is she referring to here, So,
Speaker 1: in administrative law, you have questions about sort of following
Speaker 1: the correct procedures, but you also have questions that involve
Speaker 1: making sure that agencies are, as she put it, engaged
Speaker 1: in reason decision making, that they're not being kind of
Speaker 1: arbitrary and capricious, that the records built up well enough.
Speaker 1: And I take her point to be that since this
Speaker 1: particular case involved challenges more to the procedure that the
Speaker 1: administration had followed, that it would still be possible, you know, again,
Speaker 1: in a later stage in this litigation, that this litigation
Speaker 1: keeps ongoing to say, Okay, maybe it is true that
Speaker 1: the proper pathways were followed. But it's still the case
Speaker 1: that the agencies have to provide some evidence that they
Speaker 1: rationally considered all factors and balanced all costs of benefits,
Speaker 1: and that maybe that didn't happen here. So for some
Speaker 1: who are wondering, like will this case about the contraception
Speaker 1: mandate ever end? I think that Justice Kagan's point might
Speaker 1: have been, well, it's not necessarily over yet, there's still
Speaker 1: other other bases to challenge it. But Justice Kegan agrees
Speaker 1: that the challenge in this case didn't go through. What
Speaker 1: happens now. I thought that this was okay, they're good
Speaker 1: to go on this. Now. I don't know what's going
Speaker 1: to happen next. I take her to be saying this
Speaker 1: is something that could happen. But obviously it's a it's
Speaker 1: a question whether litigants will decide to bring a different
Speaker 1: challenge again, one that's more substantive and less procedural to
Speaker 1: this particular accommodation. And of course, you know, given that
Speaker 1: we're coming up on an election and there might well
Speaker 1: be a change in administration, you could very well see
Speaker 1: a new administration trying to change the very regulations that
Speaker 1: were an issue in this case. So we have to
Speaker 1: wait and see. Splite one thing. Well, let's say you
Speaker 1: have a publicly traded company and they say we have
Speaker 1: moral objections to contraceptives. Is that all they have to do?
Speaker 1: Do they have to do anything to prove that they
Speaker 1: actually have those and they're not just trying to get
Speaker 1: away with not paying for contraceptive coverage. Yeah. Generally speaking,
Speaker 1: in cases involving religious exemptions, courts may and do inquire
Speaker 1: into whether the claim is quotes fear. So there has
Speaker 1: to be some evidence that the asserted objection is, you know,
Speaker 1: being made in good faith. The question is that whether
Speaker 1: the objectors are right. You know, the courts are supposed
Speaker 1: to get into the question of, you know, what's the
Speaker 1: moral right answer to this question, but you're allowed to
Speaker 1: ask whether a claimant is sincere. Courts do this all
Speaker 1: the time. If you think back to the hobby Lobby case. Um,
Speaker 1: you know, there was plenty of evidence that the owners
Speaker 1: of Hobby Lobby did have certain religious beliefs, that they
Speaker 1: were representing them accurately and so on. But you know,
Speaker 1: presumably if Ford Motor Company were to come forward and say,
Speaker 1: we don't want to do this anymore, we don't want
Speaker 1: to provide these benefits because we have a religious objection
Speaker 1: of court, which they will show me one bit of
Speaker 1: evidence that you have this objection or that you've ever
Speaker 1: tried to assert it in other cases, and I suspect
Speaker 1: the court would be pretty skeptical about that. And of
Speaker 1: course it's not clear at all that publicly traded corporations
Speaker 1: have any incentive to gain this particular account adation, since
Speaker 1: there's a lot of evidence that UM providing contraception coverage
Speaker 1: to employees says corporations money. So that would suggest that
Speaker 1: when a corporation does as certain objection, like Hobby Lobby did,
Speaker 1: they probably are sincere because they're not trying to again,
Speaker 1: they're not trying to get some kind of financial advantage.
Speaker 1: I remember that during the oral arguments, Justice Ruth Bader Ginsburg,
Speaker 1: who during this argument I believe was taking part from
Speaker 1: the hospital, was very fiery in her questioning how how
Speaker 1: would you characterize her dissent? I would say it was
Speaker 1: kind of in keeping with the tone of our argument.
Speaker 1: You know, um, this is in many ways. I mentioned
Speaker 1: a couple of minutes ago that this case has been
Speaker 1: going on for a long time, and Justice Ginsburg dissented
Speaker 1: in the Hobby Lobby case, she thinks that the the
Speaker 1: policy of the contraception coverage mandate. I think she thinks
Speaker 1: it's a wise policy and that it's certainly legally permissible.
Speaker 1: She objected here quite strongly, obviously, to the administration's decision
Speaker 1: to to revise and to expand the accommodation that had
Speaker 1: been put in place by Obama. She was very direct
Speaker 1: in her disagreement. And let's turn out to the second case,
Speaker 1: the ministerial exception explain the court's decision. Sure, so these
Speaker 1: are two cases that presented basically the same issue. They
Speaker 1: involved parochial school teachers at Catholic schools who've been fired,
Speaker 1: who had then filed employment discrimination claims, and the question
Speaker 1: was whether these claims can go forward given that eight
Speaker 1: years ago, a unanimous Supreme Court said that the First
Speaker 1: Amendment doesn't allow employment discrimination lawsuits to be used as
Speaker 1: a way to kind of second guests religious schools decisions
Speaker 1: about who will or who will not be They use
Speaker 1: the term minister, but you know, a leader, a teacher,
Speaker 1: somebody who plays an important religious role. Um. That was
Speaker 1: years ago, and the Court again had been unanimous in
Speaker 1: a case involving a teacher in a Lutheran school. The
Speaker 1: question here was whether these teachers were any different from
Speaker 1: the teacher in the case eight years ago seven justices,
Speaker 1: So the five Conservatives plus Justice Justices Kagan and Bryer
Speaker 1: agreed that this case presented basically the same issue as
Speaker 1: the Josiana Table case eight years ago, and that because
Speaker 1: the First Amendment both you know, the separation of Church
Speaker 1: and State and the free exercise clause, the First Amendment
Speaker 1: tells governments that they don't get to decide who should
Speaker 1: or who should not be involved in religious education and leadership,
Speaker 1: so that these lawsuits can't go forward because, if you
Speaker 1: think about it, an employment discrimination lawsuit brought by a
Speaker 1: religious school teacher is basically a request to a court
Speaker 1: to tell a religious school, Hey, this person gets to
Speaker 1: be a religious school teacher for you, whether you like
Speaker 1: it or not. The Ninth Circuit Court of Appeals had
Speaker 1: said that these cases could go forward because the Ninth
Speaker 1: Circuit adopted, but the Court told us was a a
Speaker 1: narrow version of this ministry or exception doctrine. And so
Speaker 1: I think, from my perspective anyway, the way to see
Speaker 1: these cases that came down today is that the court
Speaker 1: basically said, we we meant what we said eight years ago.
Speaker 1: The Ninth Circuit was wrong to shrink this doctrine, and
Speaker 1: we're just reaffirming what we said before, mainly that there
Speaker 1: are some employees of religious institutions who are involved in
Speaker 1: the religious mission of those institutions, and that the principle
Speaker 1: of religious freedom and the principle of church state separation
Speaker 1: doesn't allow courts to interfere in the decisions about who
Speaker 1: should or should not be a minister. Did the majority
Speaker 1: opinion give any guidance for who is a teacher who
Speaker 1: is involved in religious education? Does there have to be
Speaker 1: more than just a teacher? In a sense, what the
Speaker 1: majority said today was, you can't reduce this question to
Speaker 1: kind of a bright line test. You can't reduce it
Speaker 1: to the presence or the absence of any one particular factor. So,
Speaker 1: for example, it doesn't matter, or at least, it's not
Speaker 1: the only thing that matters, whether somebody has a title
Speaker 1: of minister or pastor or rabbi, because after all, there's
Speaker 1: lots of religious organizations that might be newer or unfamiliar
Speaker 1: or just different. They don't use those terms, and so
Speaker 1: you wouldn't want to adopt a rule that kind of
Speaker 1: privileged religions that use certain titles over ones that didn't.
Speaker 1: And the court also said, like, there's a real danger
Speaker 1: to make the test depend on, well, how much religious
Speaker 1: training does the person have to have, because then you
Speaker 1: have courts trying to evaluate, you know, what counts as
Speaker 1: religious training and whatnot. So what the court did is
Speaker 1: really just say, you have to look at the function.
Speaker 1: You have to look at what the employee is being
Speaker 1: asked to do by the religious organization, and if the
Speaker 1: employee's role is connected to the religious organization's mission, then
Speaker 1: that employee should be covered. So it's not a bright
Speaker 1: line test. That more the courts saying, look, we articulated
Speaker 1: this principle eight years ago. The Ninth Circuit tried to
Speaker 1: convert that principle into a more of a mechanical test,
Speaker 1: and the Court here said, that's not what we want.
Speaker 1: We want courts to be appropriately deferential to the fact
Speaker 1: that different religions have different ways of arranging themselves, and
Speaker 1: that courts should ask the more general questions, is this
Speaker 1: employee playing a part in the religious mission of the institution,
Speaker 1: And if the employee is, then it should be up
Speaker 1: to the religious institution to decide, for better or worse,
Speaker 1: whether to hire or fire that person. Thanks Rick, That's
Speaker 1: Richard Garnett of Notre Dame Law School, and that's UT
Speaker 1: for this edition of Bloomberg Law. I'm June Grossel. Thanks
Speaker 1: so much for listening, and remember to tune in to
Speaker 1: The Bloomberg Lawn Show every week now at ten DM
Speaker 1: Eastern right here on Bloomberg Radio.