In the term that just wrapped up, the Supreme Court decided several key cases weighing the First Amendment’s protection of free exercise of religion in relation to workers’ rights and antidiscrimination concerns, the separation of church and state, and more. This week’s episode examines those cases including:
- Espinoza v. Montana Dept. of Revenue holding that Montana can’t deny tuition assistance to parents who send their children to religious-affiliated private schools
- Our Lady of Guadalupe v. Morrissey-Berru holding that the plaintiffs, teachers at religious schools, couldn’t sue for employment discrimination because, under the “ministerial exception,” their schools can make decisions about teaching without government interference
- Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania: holding that religious employers don’t have to provide health insurance for contraceptive coverage if doing so violates their beliefs
Host Jeffrey Rosen is joined by constitutional law scholars Leah Litman and Michael McConnell.
FULL PODCAST
PARTICIPANTS
Leah Litman is Assistant Professor of Law at the University of Michigan Law school where she specializes in constitutional law. She is a regular contributor to the Take Care blog and one of the co-hosts and creators of Strict Scrutiny, a podcast about the U.S. Supreme Court.
Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He is the author of the forthcoming book “Establishment of Religion: Neutrality, Accommodation, and Separation,” which will be published in 2021. He is also the co-author, with Marci Hamilton, of the explainers on the Free Exercise and Establishment Clauses on the National Constitution Center’s Interactive Constitution.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was engineered by the National Constitution Center's AV team and Jackie McDermott, and produced by Jackie McDermott. Research was provided by Lana Ulrich and Maggie Gillespie.
ADDITIONAL RESOURCES
- Explainers on the First Amendment's Free Exercise Clause from the National Constitution Center's Interactive Constitution
- Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020)
- Our Lady of Guadalupe v. Morrissey-Berru (2020)
- Espinoza v. Montana Dept. of Revenue (2020)
- Fulton v. City of Philadelphia, Pennsylvania
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people in the momentous term that just wrapped up the Supreme Court decided several key cases.
Related to the free exercise of religion on today's episode, we'll look deeply at those cases and the future of the Free Exercise Clause. And we're greatly honored to be joined by two of America's leading experts in the law of religious freedom and of the Constitution. Leah Litman is Assistant Professor of Law at the University of Michigan Law School, where she specializes in constitutional law.
She's a regular contributor to the Take Care of blog and one of the co-hosts and creators of Strict Scrutiny, a podcast about the U S Supreme Court. Leah, it's wonderful to have you back on the show.
Leah Litman: [00:01:05] It's wonderful to be back. Thanks for having me.
Rosen: [00:01:07] And Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School and a Senior Fellow at the Hoover Institution.
He's the author of the forthcoming book, "Establishment of Religion: Neutrality, Accommodation, and Separation", which will be published in 2021. And which we can't wait to discuss on the podcast. He's also the coauthor with Marsha Hamilton of the explainers on the Free Exercise and Establishment Clauses on the National Constitution Center's Interactive Constitution, which We The People listeners, I want you to check out before or after the show. Michael, thank you so much for joining.
Michael McConnell: [00:01:46] Great to be here.
Rosen: [00:01:47] Leah, let's begin with the overview of these three landmark cases, the Espinoza v. Montana Dept. of Revenue case holding the state's can't deny financial benefits to parents who send their children to accredited private schools because of their religion. The, Our Lady of Guadalupe v. Morrissey-Berru case, which held that religious schools can choose those who teach religious classes without government interference and the Little Sisters of the Poor case, which says that religious orders don't have to provide health insurance for contraceptive coverage in violation of their beliefs.
You've argued that these cases represent a shift in religion clause, jurisprudence, and an erosion of the separation of church and state. tell us why and how.
Litman: [00:02:34] So, I think that the combined effect of the three cases is to require both more government support and government benefits for religious institutions and religious entities while also allowing those entities to be treated differently for purposes of anti-discrimination statutes. Or statues like the Affordable Care Act. So for example, Espinoza v. Montana Dept. of Revenue, said that Montana had to make its scholarships available to both religious and nonreligious schools alike, but then the decision in Our Lady of Guadalupe held that Congress cannot prohibit those religious schools from firing teachers on the basis of a disability or race or sex. The combined effect of these decisions is both to ensure that religious institutions and entities are entitled to claim a variety of public benefits while also potentially being free from public facing obligations.
Rosen: [00:03:37] Michael, in your op-ed in the New York Times on July 9th, you argued on religion the Supreme Court protects the right to be different and saw all three of these cases as protecting a form of religious pluralism. Tell us more about that argument.
McConnell: [00:03:52] Well, yes, the, the point of the religion clauses both the Establishment Clause and the Free Exercise Clause is to try to minimize governmental impact on the practice of religion.
so the Establishment Clause, by and large, applies, to, the dispersal of benefits, to organizations and the central premise of that modern jurisprudence is that it is most neutral when the government does not discriminate either for, or against institutions on the basis of their religious character.
So that if you have a school which is accredited and there's otherwise available to provide education and the government chooses to subsidize a private education, both religious and secular that the government not only doesn't have to, but may not discriminate against a school just because it is religious. The Free Exercise Clause is mostly about government regulation and it provides that, religious people and religious institutions are entitled to practice and follow and be true to their beliefs unless there's a sufficiently important governmental purpose to the contrary. And these cases simply follow from that.
They're not a norm, they're not big breaks from the recent past, the, the, the, Our Lady of Guadalupe case about the immunity from regulation of the choice of those people, those employees who either lead worship or, actually teach the religious faith. It was, it follows from a unanimous decision from, eight years ago.
In this case was seven to two. they're going to be some roll line drawing problems down the road, but these particular cases were not that revolutionary. Not that different Espinoza is the culmination of probably 25 or 30 years of doctrinal development in the Supreme Court in which it is gradually moved away from an old-fashioned view that the Establishment Clause requires discrimination against religious institutions. And the first step in that was, as I know it doesn't require that, and now with, the last several cases and especially Espinoza the court, not only does it not require discrimination against institutions, just because they're religious.
but it forbids that, and that I think is not a, I mean, that's a civil, libertarian principle. If you plug in any other belief system and you ask, well, should the government discriminate against. That belief system on the base on simply because of that, of that, or believes in, you know, whatever it happens to be, the answer would be, would be the same.
Rosen: [00:06:47] Well, Leah let's delve into Michael's argument that these cases represent an extension of a principle of religious neutrality. And let's begin with the Espinoza case. So Chief Justice Roberts in his majority opinion. Cited the Zelman case, which upheld school vouchers on the principle that as long as it's private choice, rather than governmental choice, that determines the direction of governmental funds, then the funds can go to religious or nonreligious institutions, on equal terms.
tell us more about Chief Justice Roberts argument and why you disagree with him that this is a simple extension of that neutrality principle.
Litman: [00:07:28] So I think it might be more helpful to consider how Espinoza relates to the court's more recent religious liberty case, Trinity Lutheran. So in that case, Trinity Lutheran Church brought a similar free exercise challenge to a program of public funding that made public funds available for playground resurfacing.
And there, the state declined to give those funds to a religious school and the court ultimately said the state can't decline to give the playground resurfacing funds to the religious school simply because the school was religious. But the difference between that case, Trinity Lutheran and Espinoza is that the funds in Trinity Lutheran were definitely going to be put toward a nonreligious use.
They were not going to be put toward religious education or teaching of religious faiths or training of religious teachers. Here, however, the money in Espinoza because it's just an undifferentiated pot of money that is being given to religious schools, it likely is going to fund some religious education as well as the training people in religious faiths and religious teachers.
And so the shift is from whether the Constitution allows States to decline to fund religious uses of money, rather than just declining to fund religious institutions because they are religious, but using funds for non-religious purposes. So I think that, yeah, that is the shift in the case. And why Trinity Lutheran gathered the votes of some of the more liberal justices, including Justice Kagan and Justice Breyer, but they were in dissent here.
Rosen: [00:08:57] Michael, what is the difference between this case and Trinity Lutheran as Leah argues and as Justice Breyer also arguing in his dissenting opinion. Justice Breyer said this case, unlike Trinity Lutheran boils down to what the schools would do with state support and the upshot is that here we confront a state's decision not to fund the inculcation of religious truths. what's the response?
McConnell: [00:09:20] Well, I think Leah's perfectly right about the difference between the two cases, but why that should make a difference in outcome is the real question. I mean, this happens through throughout American life. For example, people recite receiving GI bill benefits, and, he, the, the.
The veteran can go to BYU or Notre Dame, or he can go to University of Michigan or to Stanford. And it is true that, you know, some little bit of the tuition at Notre Dame or at BYU is going to go to religious education, but that has never been thought to be a reason to treat them differently. Or you think about the tax code.
A nonprofit organizations that can receive tax deductible contributions. That's a, that's an implied subsidy from the government, but yeah, religious and nonreligious organizations are treated the same way. We've never said to a religious organization that just because you're religious, you can't participate in the state, churches, get the protection of police and fire and the roads.
And, the idea that government benefits cannot extend on a neutral basis to religious organizations because some part of their expenditures goes to propagating religious faith is it would be, it's just completely like contrary to the way we do business in this country.
Rosen: [00:10:44] Leah, why are you concerned about the extension of the neutrality principle to religious uses in this case?
And tell us more about Justice Gorsuch's concurring opinion. He would have said explicitly that the First Amendment protects religious uses and actions, as well as the status of being religious. If that principle were squarely adopted, what would its consequences be?
Litman: [00:11:09] So I think my concerns with that principle are not really with that principle as such, but instead the combination of that principle with decisions like Our Lady of Guadalupe and a decision that the court is poised to decide next term, Fulton v. City of Philadelphia, as well as how the court might apply this principle of religious neutrality. So I'll just talk briefly about each. One is it would be one thing if the state could say yes, we will give money to religious and nonreligious entities alike, but we would expect that all institutions that receive public funds would agree not to discriminate on the basis of race or sex or sexual orientation.
However, decisions like Our Lady of Guadalupe suggest that Congress and the States cannot subject religious institutions to antidiscrimination statutes and the case next term Fulton v. City of Philadelphia will decide that follow on question about whether States can condition public benefits like funds or contracts on religious entities acceptance of non-discrimination provisions.
And part of the reason why I'm concerned about a rule of religious neutrality. Combined with a decision or a principal that allows religious entities to opt out of antidiscrimination or civil rights protections is that it essentially actually requires neutrality as to some groups, religious groups, but not as to others.
It denies the ability for groups protected by civil rights statutes or accommodation statutes to participate fully in public life, if they can be excluded from or discriminated against by religious institutions. So for example, an Espinoza v. Montana Dept. of Revenue. There was an allegation that something like up to one third of the schools, the religious schools funded by the scholarships in that program actually discriminated again LGBT employees.
So the State of Montana could come back and say, we'll make the scholarship money available so long as everyone agrees not to discriminate against LGBT employees and students and applies that principle and enforces it equally. Then I would have much less concern about this principle of religious neutrality.
And then second, a part of me is just a little bit concerned about how this court will apply this principle of religious neutrality, given its inability to recognize discrimination against Muslims in the entry ban case and some other contexts as well.
Rosen: [00:13:30] Michael. I need to share with our listeners, the fact that you are a central figure in persuading, the court to adopt the principle of religious neutrality.
When you were a law clerk for Justice Brennan in 1981, you helped persuade him to review the Widmar case, which held that as long as a university made its facilities available to a variety of student organizations it had to include religious organizations. And then you also successfully argued the Rosenberg case in 1995, where you persuaded the court, that the university will, that a law, all journals of student opinion, except those with a religious perspective to get a subsidy from student activities fees couldn't stand.
So as one of the architects of this neutrality principle, perhaps you could respond to Leah’s claimed that when combined with this new exemption from antidiscrimination laws, it ends up giving religious organizations not equal treatment, but special treatment.
McConnell: [00:14:26] Well, I'm glad to know that Leah doesn't actually disagree with Espinoza on its own terms.
She's putting cases to us that the court has not yet decided, and I think will be very difficult, but Espinoza was not about antidiscrimination laws. The only discrimination going on in Espinoza was against schools on account of their being religious. You can do a control F search on all the opinions and Espinoza.
And you won't find anything about a LBGT discrimination or any other kind because that just wasn't, at issue, in the case. And, you know, by the same token in the, in the two. A teacher cases, Our Lady of Guadalupe and its companion case those schools did not receive government funds and the antidiscrimination laws which were applied again only to that subcategory of people who actually teach the faith are not based upon government subsidies. Those were based. Those were imposed and an exercise of the regulatory power of the state. And I just like to remind the listeners that this is not a, this has not been a revolutionary and controversial proposition that churches and religious organizations have complete control over those people who teach there are doctrines. This was a unanimous decision of the United States Supreme Court, just eight years ago. And the, the exact, you know, the scope of how far it goes is going to be remained to be decided, but the idea, that religions have are separated from government regulation as well as from government preferences is, I think, a very well established.
Rosen: [00:16:19] Leah, your response to Michael's claim that in the Our Lady of Guadalupe case, it was a school that did not receive public funds that asked for a moral or conscious based exemption from antidiscrimination laws, invoking the ministerial exception to teachers who were not in fact ministers.
And then tell us what Our Lady of Guadalupe held. And whether or not you agree with it?
Litman: [00:16:45] Yeah. So Our Lady of Guadalupe is not the funding conditions case that's Fulton for next term. Our Lady of Guadalupe instead involved the ability to subject religious entities, and teachers at religious schools to non-discrimination statutes that are generally applicable, but that too the court's decision to exempt religious entities from those non-discrimination statutes reflected desire to teach religious entities.
Differently. Not the same. So it's not exactly a neutrality principle. The unanimous opinion that Michael was referring to was Hosanna-Tabor, that involved in attempt to apply an antidiscrimination statute to an individual who was formally designated a minister and his job qualifications actually included religious training and religious education.
The plaintiffs who in the Our Lady of Guadalupe case alleged that they were discriminated against. Were not officials who were designated as ministers. Their jobs did not require them to actually be adherence to the religious faith of the religious schools. They had no religious training that was required as their job qualification.
instead they just happen to be employed at school that were religious and had religious missions. And I think my, one of my concerns with Our Lady of Guadalupe as such is the ability to extend the reasoning in that decision to employees at other religiously affiliated entities, such as hospitals or social service organizations, or other kinds of organizations that employ a large number of people who themselves are not required to have any religious training or religious education.
but are nonetheless affiliated with the institution's religious mission. And for that reason might not be protected by antidiscrimination statutes.
Rosen: [00:18:21] Michael as Leah says the Our Lady of Guadalupe case extended Hosanna-Tabor's ministerial exemption to a teacher who was not a minister, but claimed the ministerial exemption, the case was seven to two, Justices Breyer and Kagan joined the other justices in expanding the definition of the ministerial exemption over the strong dissent of justices Sotomayor and Ginsburg who would have defined the ministerial exemption more narrowly. Tell us about why you think the majority opinion in Our Lady of Guadalupe was correct. And what, if any, it's doctrinal consequences will be.
McConnell: [00:18:59] Well, I gather Leah doesn't disagree with Hosanna-Tabor, which was the unanimous decision eight years ago. these teachers had functions generally almost identical job responsibilities as the teacher and Hosanna-Tabor. the difference was primarily that they had a different title and the fact that they had a different title has a lot to do with the, with their denominational difference.
And the, the court held in Our Lady of Guadalupe and I think quite correctly, the, the scope of the immunity should not hinge upon, whether the per what religious title, what title is attached to the, to the employee, and one of the main reasons for this is that different religions have a very different posture toward a religious title so that, you know, Quakers, for example, have religious leaders, but they don't give them religious titles at all because they don't believe in, in religious titles, you know, Catholics call their worship leader, a priest, but one of the fundamental ideas of the Protestant reformation was the priesthood of all believers so that they don't call their people, priests to, to, to give to the left the immunity, the constitutional immunity hinge upon what the person is called a would be arbitrary. Would create discrimination between, various, religious denominations. And so what the court said was that we look at what the employee does, not what the they're called and when you look at what they do, they actually teach religious classes. They lead students in religious worship, and, they are functionally identical to what the teacher and Hosanna-Tabor, did now. interestingly in the oral argument, there was actually not that much dispute over these particular teachers. Most of the, of the argument had to do with other much more difficult hypothetical's.
I think it's interesting that the court. You know, didn't actually find this case all that hard, but there are very difficult, a potential cases on the margins and we're going to deal with them. The court, the court did not lay down any hard and fast rules for how, and I suspect they're going to be. there, they're going to be a number of cases, but there's nothing new in that the ministerial exemption has been around on the lower courts, just came to the Supreme court eight years ago, but it's been in the lower courts for decades.
and you know, there've been some marginal cases that are pretty hard on the margins, but in general, courts are able to tell the difference between a person whose job responsibility it is to propagate the faith. versus somebody whose job responsibility is secular in nature.
Rosen: [00:21:56] Leah, why did Justices Breyer and Kagan join the majority? Justice Sotomayor in her dissent warned of lots of potential for abuse.
She said that the court absolves religious institutions of any animus, completely irrelevant to their religious beliefs or practices and all, but forbids courts to inquire further about whether the employee is in fact, a leader of the religion. And just to give a concrete example, a teacher in Ohio was recently fired by a diocese school, a church.
he's a history teacher and he was fired simply for exercising his right to marry a man. Will that kind of conduct be immune from scrutiny in light of this decision? And do you agree with, or not with Justice Sotomayor warning that this will lead to lots of insulation from antidiscrimination laws by teachers with only a tangential connection to actually leading religious functions.
Litman: [00:22:51] So why Justice Kagan and Justice Breyer chose to join this particular opinion might be a question that is a little bit above my pay grade, although if they would like to. Let me know, they know where to reach me. I do want to recommend for your listeners a fantastic paper by Micah Schwartzman who's a professor at Virginia and Nelson Tebbe who's a professor at Cornell that's called Establishment Clause Appeasement, and they document Justice Kagan and Justice Breyer in particular, willingness to compromise on religion cases with the more conservative wing of the court as they move closer to Michael's position and other advocates of, Religious Liberty.
So why they choose to do that is a little bit unclear. One suggestion in the paper is that they do so in order to narrow the reach of these decisions. And in particular, here, there are some passages in this particular opinion that suggests that they apply only to religious teachers at religious schools.
And perhaps they do not apply to employees at other religious institutions like hospitals and in light of recent reports that some hospitals have declined to provide surgeries and other services to transgender patients. you know, there's a real question about whether Our Lady of Guadalupe is a suggestion that religious entities are exempt from antidiscrimination statutes applies beyond religious schools to other religious entities as well. And the fact that they joined this opinion and therefore might've had a hand in narrowing, it somewhat is one possible reason why they might have done so. The concurrence indicated that they would have deferred entirely to the religious institution's designation of an individual as involved in the teaching of religious faith.
And by joining an opinion, that preserved a more functional approach rather than one that turns only on an institution's designation. If someone has involved in religious teachings, they might have slowed the tide or trend in the court's decisions in that way. I did just want to briefly say something about the expanding reach of what is formerly known as the Ministerial Exemption, right? That is the exemption that these entities got the benefit of in Our Lady of Guadalupe. And it gets its name, of course, from the idea that we shouldn't be telling churches who they can hire and fire as ministers. And one reason why you didn't want to do that as course, some institutions, including the Catholic church, don't have women, as you know, leaders of the religious faith.
And it's a little bit odd to me to think that as a result of decisions, like Our Lady of Guadalupe, there are now a bunch of female teachers who are functionally designated as ministers, and therefore not within the scope of the protections of antidiscrimination statutes, even though this very ministerial exemption was designed in part to ensure that religious institutions didn't have to hire women as ministers.
Rosen: [00:25:59] Michael as a matter of first principles, do you agree with Justice Thomas in his concurrence with Justice Gorsuch, which Leah mentioned that courts have no warrant to second guess the school's judgment of who should hold such a position of carrying out the religious mission of the parish and more broadly to take the example of the teacher in Ohio.
Assuming, this is a teacher of history who has no religious function whatsoever under the, Our Lady of Guadalupe, majority holding can the Catholic school fire him under the ministerial exemption and do you think that's the correct result?
McConnell: [00:26:37] I don't, I haven't been following this particular case. I don't think that the ministerial exemption would cover the history teacher because if the history teacher has no, isn't actually teaching religion classes.
So, I don't think Our Lady of Guadalupe would apply there might other, there might be other, provisions of the anti-discrimination laws that. That would apply, for example, it may very well, be that the teachers are required, I don't know anything about this school, but, that some schools do, require their teachers to conform to the religion, not undermine the religion, by, either teaching against or, or, conspicuously acting against its precepts. you know, that might, that principle, might, possibly apply now as to the broader question of deference. I don't read Justice Thomas as saying that there's absolute deference. I do think. he, I, I do read him the saying that that secular institutions should be quite hesitant to second guess.
the, religious institutions own understanding of what the religious function is of their employees. This is not an unusual idea, and freedom of association law in general. the Supreme Court has said that a court should in general defer to, to any organizations, self-understanding about its, its belief system doesn't mean no review, but it does mean that we should be cautious secular and
governmental institution should be cautious about telling churches or other private associations, you know, to, to tell them what they believe and how their belief system, works in connection with what they do. It seems, it seems like a civil libertarian proposition to me.
Rosen: [00:28:33] Leah. Tell us more about the case.
The court has decided to hear next year about religious exemption from anti-discrimination laws. What are the stakes and what are your concerns about the ways that it might be decided?
Litman: [00:28:46] So the case that the court has agreed to here for next term is Fulton vs. City of Philadelphia. And it is a free exercise challenge to the City of Philadelphia's system for contracting with foster care placement agencies as a condition for receiving a government contract for foster care placement, thereby essentially acting as an agent of the government and foster care placement. The City of Philadelphia requires entities to agree not to discriminate against LGBT families. So every year when the city awards, these contracts, the contractors have to agree to that particular position.
Now. One religious foster care placement agency challenged that policy as an unconstitutional burden on their religion and violation of the Free Exercise Clause because they maintained that their religious beliefs were inconsistent with placing children in LGBT families. And so the question that the court is going to address is whether in fact
it violates the Free Exercise Clause to condition a public benefit, here, a government contract for foster care placement agencies on an entity's compliance with non-discriminate norms, here, an agreement not to discriminate against LGBT families. So that's the question the court is going to address.
And some of the reasons I'm concerned about it is in part the development of Free Exercise Clause and Establishment Clause jurisprudence over the last 20 to 25 years, that Michael has alluded to moving more toward religious entities entitlements to public benefits while allowing them to be free from generally applicable requirements, like not discrimination provisions.
and I worry that, that, ruling to that effect again, could impede, you know, different groups' ability to be treated equally or treated neutrally, and maintain, you know, full access to the various, you know, benefits of like civic and public life, and here, the ability to raise a family.
Rosen: [00:30:48] Michael, one of the questions in the Fulton v. City of Philadelphia case, whether Employment Division v. Smith should be revisited. You've been central in writing about the Smith case from 1990, which held the members of the Native American church could not be exempted on free exercise grounds from generally applicable laws. That decision written by the late Justice Scalia is up for grabs in the Fulton case.
Should Smith be reversed and what are the stakes in the Fulton case?
McConnell: [00:31:20] So. Fulton is a very complicated, and it's going to be a very controversial case on its facts, but it's not even clear to me that the Supreme Court will get to its facts because the questions presented are really doctrinal on a kind of a, at a.
an early stage. It's what, it's, what kind of questions? What, what, what are the standards of review you, that are going to be applied and, and here are the court has two choices. one is, is that it could revisit Smith itself. And the second is that it could, wade into a circuit split that has to do with how, Smith is, is interpreted now.
I think that it's time for the court to reconsider Employment Division v. Smith. I, from, from when the case came down, I have never believed that the, that that decision was, adequately and persuasively, explained, it. overturned, decisions of the court, including ones, you know, written and endorsed by written by my former boss, Justice Brennan and endorsed by Thurgood Marshall and other liberal members of the court.
Harry Blackman dissented, The case gave no attention whatsoever, to the history of the Free Exercise Clause. It only glancingly mentions the text of the Free Exercise Clause and it, and, and, and all this, and it was, you know, blatantly and contrary to the precedent in the court having to do with the Free Exercise Clause.
So, you know, I certainly think it's time for the court to look at it. I think the only reason why the court hasn't reconsidered it over, over these years is Justice Scalia was still, was so adamantly, persuaded by the case. I think he, he basically, was a one man, you know, blocking tackle that, that protected the decision.
Now that said, It's not clear to me that that's what the Supreme Court is going to do because the second alternative is more modest and this court is not a revolutionary court. They tend to go by very small steps. and when there is a small step available, you know, I think they may well take it in the smaller step here, has to do with what we understand.
Smith to mean, Smith provided that the or held that the Free Exercise Clause, does not provide protection against laws that are neutral and generally applicable. But what does that mean? the third circuit below adopted the narrowest interpretation of that saying that a law is neutral and generally applicable so long as you can't identify a, another actor who was permitted to do the same thing, but who held different religious beliefs. So, that confines the case to, to, you know, to a relatively narrow are defined co confines the Free Exercise Clause are relatively narrow class of cases in which you have an almost identical. a comparator, most of the circuits have taken a more generous interpretation of Smith and look to the history of the adoption of the statute.
They look to the existence of numerous exemptions and to, and especially to case by case. Exemption schemes within the system. and, when you do that, there's at least, well, the third circuit declined to do that. And there's certainly arguments having to do with that and under the facts of Fulton, so it would not at all surprise me if what the Supreme Court does is to say the third circuit took too narrow, whatever they may say. You know, we're not deciding whether Smith, we're not reaffirming Smith, but even under Smith, the, protections are more generous than those that the third circuit recognized and then sending it back for an examination under those.
Rosen: [00:35:35] This is giving me a strong sense of déjà vu.
It was a 1990 in April that the court decided Smith. And in the fall of that year, my third year in law school, Michael McConnell, you published an article on the University of Chicago Law Review. Free Exercise Revisionism and the Smith Decision, which I read does as all law students did with. Great. and now the moment of truth may or may not come next term and Smith may be revisited. Leah, do you believe that Smith should be overturned? If it were overturned, it would restore the law to requiring that government cannot make policies that burden the exercise of sincere religious belief, unless it's the least restrictive means of achieving a compelling secular objective. that's the test that the Religious Freedom Restoration Act, embraced when Congress tried to overturn parts of Smith, By a statute.
How big a deal would it be to overturn Smith and restore that compelling interest test to the Constitution. And do you think that Smith should be overturned or not?
Litman: [00:36:42] So Michael, I'm sorry to rib you a little. but I do not favor overruling Smith because I favor a principle of religious neutrality treating religious institutions and nonreligious institutions alike, and everyone can be subject to the same generally applicable rules.
So long as they are not designed specifically to disadvantage or target religious groups or are based on religious animus. So that's my view. I'm a kind of generally applicable rule person. In general, as to the consequences of overturning Smith. You know, I think that that is frankly a little bit difficult to predict because it depends in part on what this new court would say, constitutes a substantial burden on religion and how it would weigh the competing government interests against those substantial burdens.
You know, I, again, part of the reason I am concerned about the prospect of overturning Smith is how that. More amorphous standard would work in the hands of this court, which seems quite receptive and attentive to intrusions or infringements or disadvantages on white Christians, but perhaps less attentive to disadvantages on other religions, including Islam.
So, yeah. You know, another example of this, arguably is Justice Thomas and Justice Gorsuch writing that they would allow States to actually establish religions. You know, to my mind that is not a principle of religious neutrality or pluralism. That is the ability for States to choose one religious group over another.
So part of my concern with overturning Smith is what the pre Smith standard would look like in the hands of this court. so that's kinda where I stand there, but I also agree with Michael that this particular case just does not seem to be a great vehicle for overturning Smith versus potentially narrowing it, or even avoiding that question entirely.
That is definitely this court and the Chief Justice's preferred course, in particular. And so I just don't see them overturning Smith here, even though several of the justices have indicated their willingness to do so in separate writings.
Rosen: [00:38:41] Before we turn to the last case, Michael it would be great to get your thoughts on the correct interpretation of the Free Exercise and Establishment Clauses read together.
Leah has suggested that Justice Thomas's view, which would essentially remove establishment clause scrutiny from state action and would allow for religious exemptions from generally applicable laws would create not a. Equal treatment, but that's special treatment for religion. Why do you disagree with that?
And how do you see their clauses fitting together? When it comes to the question of exemptions by religious entities from generally applicable antidiscrimination laws.
McConnell: [00:39:20] This is a hard question. We've been arguing about this for 230 years. but the point is that the neutrality with respect to religion has to do with reducing, minimizing, governmental impact upon the exercise of religion. This is, these are not equal protection or non-discrimination clauses. These are freedom clauses, and when it comes to the distribution of benefits, the most neutral way, the least impactful way of distributing benefits is neutrally. They should. If you have two schools that are both accredited and doing the same job, they should, they should be treated.
It advances religious freedom to treat, treat them the same way, because that means families can choose between them. It's the. Family. It's the choice of the family rather than the government's choice, the, that controls, when it comes to regulation, it's a much trickier proposition because particular laws have an impact upon particular religious faiths. And, and so the, at the, and the first Congress, when they were debating the First Amendment, they knew they were also debating military service and the requirement of serving in the military. Now they knew that, and I'm using the term they use Quakers and Mennonites was the term that they used.
They knew the Quakers and Mennonites had a religious objection to, to military service. And so James Madison no last, makes a proposal. So, to that those persons religiously scrupulous of bearing arms, that's a direct quotation should be exempted. Now, does that treat, does that. Treat the Quakers and Menonites, as they called them, non neutrally in a sense, it does.
but what it does is it allows them to be able to practice their faith and just the same way as … churches do every religious belief has certain, It has certain peculiarities, and the idea of free exercise is to try to make it possible for each of them to observe their own peculiarities.
And unless there's a very powerful governmental interest, to the contrary. And so we've had religious exemptions from various kinds of laws from the very beginning of the, of the Republic. and, even, you know, Smith itself had to do with the Native American church, which, whose sacramental practice involves the ingestion of a, of a hallucinogenic substance, which is on the government's list of forbidden narcotic drugs.
and if we enforced that law, that drug law, without exceptions, as Leah professes to believe the Native American church would either be outlawed or driven into the, whatever the 21st century equivalent is of the catacombs. We're not going to do that. We've not done that in America. Now, when Smith came down, the, it became a ceased to be a constitutional principle, but it doesn't cease to be a principle that American institutions tend to follow. We are an accommodating people. we don't want to make it illegal to be a member of the Native American church or the Christian Science church or any other church who has peculiar beliefs. That happened to be contrary to what most of us decide.
And now, now the same sex marriage and LBGTQ issues present the same problem as military draft exemptions only with a different ideological valence and the stole. The question is going to be the same. Do we force everyone to conform even at the price of making, you know, religious, religious practices illegal?
And the answer we've always given in the past is you, don't not really, unless we've got a really good secular governmental purpose, and, and, for doing that. Which maybe we do. And the cases that Leah is talking about. I don't know, but, but, but to, but to wipe aside this long American tradition of doing our very best to let religious minorities.
Live their lives in accordance with their own religious conscience. We don't, I don't want to see that brushed aside.
Rosen: [00:44:02] Leah, your response to Michael's claim in this extraordinarily important and complicated area of law that requiring religiously scrupulous people to comply with antidiscrimination laws is like compulsory military service.
And then if you could put on the table, the facts and holding of the Little Sisters of the Poor case. So we can take a beat on that. That would be great as well.
Litman: [00:44:26] Sure. So I would actually offer a hypothetical that Justice Sotomayor offered during the Little Sisters of the Poor hypothetical, which is imagine if you would, for a second, a country caught in the grips of a major pandemic and the only hopes of a merging of that pandemic and returning to normalcy is a compulsory vaccination.
Now, would you allow individuals who have religious objections to vaccinations or required government intuitions into their body to opt out of a compulsory vaccination law, even though that might very well be the way that we all return as a society to normalcy. You know that to my mind is another example about why I am personally in favor of a more generally applicable rule.
And I have more faith in the political processes to make the kinds of calculations that in the pre-Smith world courts were making about whether a given requirement was adequately justified relative to its burden. So, I would allow the political process to make a determination about when generally applicable requirements are sufficiently important that they can be imposed on everyone and allowed them to make the termination about when and whether particular groups should be exempt from them.
Now the Little Sisters decision itself actually turned out to be slightly more of an administrative law decision than a religious freedom one. It involved a challenge to the Trump administration's regulation regarding the Affordable Care Act so-called contraception mandate. And I say so-called contraception mandate because there actually isn't a contraception mandate in the Affordable Care Act.
Instead there's a requirement that employers offer their employees insurance that covers essential health care services. When the Affordable Care Act was passed, the Obama administration passed a regulation indicating that essential healthcare services included contraception now by statute and regulation, churches were exempt from requiring or from providing contraception access. And the question was there are other religiously affiliated institutions or institutions, institutions with religious objections to contraception could be exempt as well. Under the Obama administration, the end result of the accommodation process was what was known as a self-certification accommodation.
A religious entity had to inform the federal government or their insurance provider, that they had an objection to providing contraception coverage. In which case the insurance provider or plan administrator had to offer coverage for the employer's employees, but not at the employer's expense. Instead it would be at the insurance carriers expense, sometimes reimbursed by the federal government.
When the Trump administration was elected. They passed a different regulation that said any entity with religious or moral exemptions. Or I'm sorry, any entity with religious or moral objections was exempt from the mandate at all. That is they did not have to notify anyone of their objections. And therefore the insurance company did not have to provide contraception coverage to the employer's employees.
So what the court ultimately, ended up deciding was that that regulation. Was a valid exercise of the authority granted to the Department of Health and Human Services under the Affordable Care Act and that the department could consider among other things, the religious liberty concerns, but some of the objecting entities had. The court did not ultimately decide the question.
Oh, the two justices would have whether the statute that effectively overturned Employment Division v. Smith or Religious Freedom Restoration Act, whether that statute required the exemption that the Trump administration had provided. So that question was not decided instead, the court upheld the validity of the regulation that the Trump administration passed exempting any entities with religious or moral objections to contraception.
Rosen: [00:48:28] Thank you for that extremely clear description of the various positions in the Little Sisters case. as you suggest, there were concurring opinions and one was filed by Justice Kagan joined by Justice Breyer, who said, I would uphold the department statutory authority to exempt certain employers from the contraceptive coverage mandate.
But for different reasons. she says that on remand, she questions, whether the exemptions can survive administrative law's demand for reason decision-making. Michael, what is the significance of that concurrence? What's the argument that it wasn't reasoned decision making. And also tell us about the separate concurrence of, Justice Alito, who is Leah suggests would have held squarely that the Religious Freedom Restoration Act prohibits the federal government from violating religious liberty and therefore require the regulation.
McConnell: [00:49:23] So as is unfortunately often the case, this administration pays somewhat less attention to dotting the I's and crossing the T's and administrative decision making than, of an I suspect it's lawyer's wishes that.
Wish that it would, I'd have no doubt that the core of the, Of the position taken by the new administration is entirely a reasonable it's, it's, it's practically on an enforcement. It's really an enforcement of the Supreme Court's own decision, some, a few years ago. In the Zubik, a case, which what was the vote in Zubik eight to nothing, I think, that, yes, the contraceptive mandate, as interpreted by the Obama administration did burden the sincerely held religious beliefs of some organizations. And yes, there were ways to accommodate that with, without, sacrificing the underlying purposes, that was a unian ... And then sending it back, to, to the parties for basically to get to know negotiated conclusion.
And then when the new administration came in, the current rules are essentially an agreement, as, with these organizations, including the Little Sisters, giving them, accommodation for their religious needs. There's nothing unreasonable about that. The administration did however, broaden, the scope of the exemption.
Beyond, religious strictly religious organizations and slightly beyond what the free exercise claims were, in the Zubik cases and did not give much of an explanation for why it was doing that. I think any sentient lawyer could supply reasonable justifications, but they, didn't for the most part, give them.
And so the practical conclusion of this is that, the can has been kicked down the road for further administrative proceedings maybe first supplementing the record with, an additional statement of reasons. And in any event, there's going to be a new administration elected pretty soon. And, if it is, if the election goes the way it looks like it might all this, all this is gonna, The can, will have been kicked.
Well, we kicked back in the opposite direction again. And then, and, and then we'll we back where we started, which was with the free exercise claim by these organizations, and, some requirement of accommodating them.
Rosen: [00:52:10] Well, it's time for closing arguments in this extremely illuminating and deep discussion.
And Leah, the first one is to you and I'll ask an open-ended one. Why are you concerned about the future of the Supreme Court's interpretation of the religion clauses of the First Amendment?
Litman: [00:52:29] I am concerned about chipping away at hard fought victories for civil rights and, other accommodations, I think, for example, that the recent victory in Bostock for LGBT workers could be substantially limited when the court comes back and says religious employers or employers with religious objections can opt out of the prohibition on discriminating against LGBT employees.
Rosen: [00:52:56] Thanks so much for that. And Michael, last word to you. Why do you believe that the court's interpretation of the religion clauses of the First Amendment is moving in the right direction?
McConnell: [00:53:08] The Constitution protects both the free exercise of religion and prevents the establishment of religion. This was, an as old and as central a proposition to the American Republic, as, as any. And it is more, it's becoming even more important as the as the world becomes more diverse religiously.
We have many more religious denominations, but also as especially the more, elite portions of society become secular and in many cases, quite hostile to traditional, religious belief, the constitutional protections become, ever so much more important. And so, you know, it's hard to defend, you know, the reasoning of the Supreme Court and all of its decisions.
And. You know, it takes one step forward and two steps back or the, or, or the opposite, but it may be that it does seem that they are stumbling toward a position that is, closer perhaps to that of the American people than either of the two more, polarized political points of view would have it.
And that is some combination of protections for the newly recognized rights of LBGTQ people in the workplace and elsewhere, but coupled with, protection for people who descend from that new orthodoxy and who want to live their lives, in accordance with their deepest held views, it may even be possible.
And I think perhaps the Supreme Court is looking for a formula. So that All-Americans, are able to, to live their lives in accordance with, with, their deepest identities and convictions.
Rosen: [00:54:59] Thank you so much. Leah Litman and Michael McConnell for a deep and illuminating discussion of the future of the religion clauses and the First Amendment at the Supreme Court.
It is an honor for me and for our We The People listeners to learn from both of you. Leah, Michael, thank you so much for joining.
McConnell: [00:55:19] Thank you.
Litman: [00:55:20] Yes. Thank you.
Rosen: [00:55:26] Today's show was engineered by the National Constitution Center's AV team and produced by Jackie McDermott research was provided by Maggie Gillespie and Lana Ulrich. Please rate, review, and subscribe to We The People on Apple podcast. I'd recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly dose of constitutional debate, and always remember friends that the National Constitution Center is a private nonprofit, we rely on the generosity, passion, engagement, and love of lifelong learning and civil debate that people like you who are inspired by our nonpartisan mission. You can support it by becoming a member at constitutioncenter.org/membership. Or give a donation of any amount at constitutioncenter.org/donate. Thanks to all of you for educating yourself about the Constitution and on behalf of the National Constitution Center, I'm Jeffrey Rosen.
