Religious Entities Flex Their Muscles Through the Roberts Court, Playing Both Sides of the Discrimination Coin


Religious litigants were successful this Supreme Court Term wielding their religious identity as both a shield and a sword. The Roberts Court delivered just what they ordered: ever more expansive rights to government funding, based on their right not to be discriminated against, and mounting immunity from the employment discrimination laws. Thanks to President Trump, the Court now has a conservative, religious majority—which is composed of four Catholic men (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh) and Justice Neil Gorsuch, who is apparently Episcopalian. They were a well-oiled machine delivering for religious believers with nary a concern about who might be harmed.

As religious litigants succeed in expanding their opportunities for government-sourced income streams, and eschew the legal obligations on everyone else, they also persist in their expectations of no public accountability about their finances. Unlike other nonprofits, they maintain their tax-exempt status without having to truthfully disclose their actual finances, donors, or lobbying activity. The result is a greater capacity to pursue government funds under cover, e.g., the PPP loans through which the Catholic dioceses and parishes raked in $1.4 billion, and an ever-increasing power to impose their beliefs on their employees, whether co-believers or not.

The “Equality” That Increases Religious Entities’ Fortunes

There was a time when the “separation of church and state,” that concept devised by Baptist preacher John Leland and embodied in James Madison’s First Amendment’s Establishment Clause, meant that the government was foreclosed from moving tax proceeds into religious coffers. Madison, the drafter of the First Amendment, railed against taxpayer support of religious education in his 1785 Memorial and Remonstrance Against Religious Assessments. He said not even “three pence” in taxes should flow from a citizen to support religious education. Why? Because government financial support of religion is bad for religion and bad for government; it leads to a union of power that the framing generation understood leads to tyranny.

One of the projects of religious lobbyists and some law professors since the 1990s has been to open the sluice to increased government funding of religious education and activities. They shrewdly adopted the vernacular of “discrimination,” arguing that if any other entity was receiving taxpayer funds, well, then, they should, too. Their first major success was in 1995 in Rosenberger v. University of Virginia, where the Court ruled 5-4 that the University of Virginia was required to financially support a religious club engaged in proselytization if it also supported secular clubs. The decision planted the seed they hoped to cultivate that religious entities must be treated “equally” with all others that receive government dollars. They reasoned that if they are not included as beneficiaries of public funds, they are victims of discrimination. Don’t worry about James Madison’s concern about corruption and an unholy union of power. Instead, accept that religious entities and secular entities are the same when it comes to funding.

In 2017, the Roberts Court gave that seed a heavy watering with the Chief Justice’s majority opinion in Trinity Lutheran Church v. Comer, holding that a church must receive recycled rubber playground resurfacing if other playgrounds did as well. This Term, in Espinoza v. Montana Department of Revenue, Roberts took the Court one step farther, holding that the government cannot have a scholarship fund that includes private schools but not religious private schools. This was a victory for private religious schools’ coffers.

The Exceptionalism That Permits Them to Discriminate

While they have posed as the victims of unfair discrimination in government funds, religious entities have also pushed an agenda of discrimination against their employees. In other words, they have seen no need to draw a connection between public values like nondiscrimination and the fact they are demanding taxpayer proceeds and tax-free status.

In the 1980s, religious lobbyists with their supportive law professors took to the legislatures to demand what they are fond of calling “autonomy.” They frequently argue that they are so special that while they should be treated as “equals” in terms of finances, they should not have to obey the laws meant for everyone else. They may piously demand “equal” treatment when it comes to government dollars, but they are determined to be able to discriminate against their employees at will in as many ways as possible. Three cases this Term enhance their power to discriminate.

Their preferred mechanisms for avoiding the obligations of the law are the Religious Freedom Restoration Act (“RFRA”), and a doctrine called the “ministerial exception.”

This Term, the Roberts Court in an opinion by Justice Alito enlarged the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, to hold that lay teachers at Catholic schools are not protected by the federal laws against age discrimination or disability discrimination. Alito intoned how very religious their teaching activities were, without once making a nod to how devastating it can be to lose your job because of your age or cancer diagnosis. Employees of religious entities beware: regardless of what the faith believes, they can violate your civil rights on a whim (after they pay you a pittance compared to other private schools and public schools).

The less-noticed moment of a newly defined power to discriminate appeared in the Bostock v. Clayton County case where Justice Gorsuch wrote for the majority. The headline from this case was that “sex” in Title VII includes LGBTQ and so employers would not be permitted to discriminate against their gay or trans employees. This seemed like such a progressive opinion! Yet, read the opinion to the end where Gorsuch laid the foundation to permit anyone to discriminate against LGBTQ under Title VII if they are able to articulate a religious reason for it.

At the end of the majority opinion, Gorsuch went out of his way to point out that the employers in that case did not raise a religious defense to the claims, but if they had, there is an escape hatch: RFRA. Before you become comfortable thinking, well, that won’t apply to major corporations, please remember Burwell v. Hobby Lobby. In that case, a for-profit lucrative arts and crafts chain successfully invoked RFRA to deny women employees contraceptive coverage that conflicted with the owners’ faith. That would otherwise be a violation of the women’s rights against gender and religious discrimination under Title VII, but as Gorsuch declared, RFRA is a “super statute.” Thus, Bostock modified by RFRA opens the door to discrimination against LGBTQ employees by individuals, nonprofits, and for-profit organizations.

RFRA’s capacity to undermine public health in Hobby Lobby was reinforced this Term in Little Sisters of the Poor v. Pennsylvania, where the majority, in an opinion by Justice Thomas, held that the Trump administration’s evisceration of the contraceptive mandate (requiring no-cost contraception for all women) through broad religious and moral exemptions was supported by RFRA. As with all of these decisions, the spotlight was trained on the religious actors while their victims essentially sat in the dark, off to the side, ignored by the justices who were busy constructing a separate world for fellow believers without the bothersome Lockean obligations of a shared society.

Essentially, the conservative members of the Court have built a functional and operational establishment. They have created entitlements to government support, while they have built shelter for religious entities and business owners from the principles of fairness and accountability that undergird Title VII.

Madison sagely described the effect of religious establishments on civil society: sometimes they “erect a spiritual tyranny on the ruins of the Civil authority” and at others, “they have been seen upholding the thrones of political tyranny.” Either way, according to Madison, they have not been “the guardians of the liberties of the people.”

Amen to that.

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