Editor’s note: This post by AU President and CEO Rachel Laser originally appeared in the September 2020 issue of AU’s Church & State magazine.
When the Supreme Court took on an unprecedented number of cases discussing religious freedom this term, Americans United was concerned. We had fought hard against the nominations of Justices Neil Gorsuch and Brett Kavanaugh. We knew the new majority was unlikely to be with us.
Nevertheless, you probably celebrated alongside AU when six justices agreed that Title VII of the Civil Rights Act’s ban on sex discrimination prohibits LGBTQ discrimination in the workplace too.
But the opinion contained a paragraph that left open the possibility of a gaping hole in this newly clarified right. Justice Gorsuch, writing for the majority, explained that the Religious Freedom Restoration Act operates “as a kind of super statute, displacing the normal operation of other federal laws” and “might supersede Title VII’s commands in appropriate cases.”
So, even as we were overjoyed by the heart of this ruling, we worried about decisions imminently coming down directly involving religious freedom.
Unfortunately, we were not wrong. In a trio of decisions, the court handed down rulings that represent a distortion of religious freedom that privileges certain religious beliefs over the interests and well-being of the vast majority of Americans.
In Espinoza v. Montana Department of Revenue, the court overturned decades of precedent to hold that if a state decides to create a private school voucher program, it must fund private religious schools along with private secular schools. This decision offends church-state separation and threatens 38 state constitutions, which specifically prevent funding of religious schools.
Religious schools have turned students away because their families don’t share the school’s religious beliefs. They have barred admission because a student or parent is LGBTQ or a student has a disability. They have expelled students who engage in sex outside marriage. And some have fired teachers for being pregnant and unmarried, for undergoing in vitro fertilization or for advocating for the right to terminate a pregnancy.
When religious schools are given a sweeping right to ignore anti-discrimination laws but at the same time are guaranteed access to taxpayer dollars through voucher programs, they are receiving special treatment (or religious privilege), not equal treatment (or religious freedom).
And these same religious schools are now even freer to discriminate against their own teachers – thanks to the Supreme Court’s Our Lady of Guadalupe School v. Morrissey-Berru decision. In this case, two fifth-grade teachers at private Catholic schools had complained that they were fired for discriminatory reasons – one for being older and the other after she was diagnosed with breast cancer. The majority concluded that both of the teachers fall within the ministerial exception, meaning that they can’t bring employment-discrimination claims against the schools. Under this ruling, if teachers teach or even supervise any religious content at all, they are likely to be considered “ministers” who may be denied the employment protections that other teachers have and deserve. More religious privilege for these taxpayer-funded schools.
The birth control decision in Trump v. Pennsylvania is also deeply troubling. The court decided that the Trump administration had the authority to issue rules that would exempt employers and universities from covering contraceptives based on their religious beliefs. Though the court formally sidestepped the religious freedom issue and instead relied on a narrow interpretation of administrative law, it should have struck down the religion exemption because it violates religious freedom under the guise of protecting it.
This decision tells tens of thousands of people that they have to sacrifice their right to no-cost birth control, as guaranteed by the Affordable Care Act, because of their bosses’ religious views. That’s not religious freedom; it’s religious privilege. As Justice Ruth Bader Ginsburg wrote, “Today, for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
This Supreme Court term wasn’t just disappointing, it was enraging. But don’t think we’re waving any white flags here at Americans United. We have our work cut out for us, but we have a strategy, a huge number of allies, a talented staff and you all, who make us a true force to be reckoned with. It won’t be easy to rebuild the church-state wall, but Americans United is uniquely positioned to lead that effort.
I’m counting on your continued support.