Bending Toward Justice: Brace for more religion in the public sphere from conservatives

At least since Ronald Reagan was president, when the Republican Party is in power, we tend to see religion playing a more prominent role in public policy. With Republicans in control of Congress and the White House, and with Trump relying so heavily on evangelicals to prop up his presidency, we are likely to see the banner of religious freedom used in far more dangerous ways.

The House version of the tax bill would repeal the 1964 law that forbids churches from engaging in political activity. It also  includes a broad definition of “unborn child” to include a child in utero that is”a species of home sapiens at any stage of development, that is carried in the womb.”* If Democrats can’t find a way to scuttle the tax bill as it moves through a House-Senate conference committee, both of these provisions will become law, and signal a significant shift toward the religious right’s agenda.

The Supreme Court will tackle the breadth of religious freedom on Tuesday when it hears oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Colorado’s anti-discrimination law bars public accommodations, including stores that sell goods to the public, from discriminating on the basis of sexual orientation, among other immutable characteristics. Charlie Craig and David Mullins went to Masterpiece Cakeshop looking for a wedding cake for their same-sex wedding. Cakeshop owner Jack Phillips refused, claiming that he runs the cake shop consistent with his religious beliefs, and those beliefs include that marriage should only be between a man and a woman.

Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, which ruled in their favor. A Colorado court of appeal affirmed. Phillips then took his case to the Supreme Court. There he argues that cake making is an expressive art and that government, in the form of anti-discrimination laws, cannot compel him to make art that carries a message that conflicts with his religious beliefs. As legal scholar and Supreme Court advocate Amy Howe wrote on SCOTUSblog:

In his brief at the Supreme Court, Phillips depicts the legal battle as a pivotal one that threatens “his and all likeminded believers’ freedom to live out their religious identity in the public square,” as well as the “expressive freedom of all who create art or other speech for a living.”

At it’s core, the dispute in Masterpiece Cakeshop comes down to this: how does the Court balance one person’s religious liberty against societal norms embedded in public policy, like anti-discrimination.

Courts will face similar questions as they grapple with the Trump Administration’s new rules making it much easier for employers to claim an exemption based on religious and moral objections, in order to avoid providing contraceptive services in their employee health care plans. Eight lawsuits have been filed, some by individuals who have or will lose contraceptive care as a result, and some by states suing on behalf of their residents, and themselves, claiming a financial hardship from having to provide contraception services to all the women who will lose out under the new rules.

The lawsuits vary by a matter of degrees but they share these common claims: the Trump Administration didn’t follow federal law in rushing the rules without notice and comment; the rules are not rationally related to the evidence before the agencies; that the rules violate the Constitution’s Equal Protection Clause because they discriminate against women; and that the rules violate the Constitution’s Establishment Clause because they favor religion in a way that is not narrowly designed, and therefore burdens women who don’t object to contraception on religious grounds.

Let’s dispense with the procedural arguments for now, because those can be easily cured by a court ordering the Trump Administration to go back and follow the correct process. Let’s focus instead on the heart of this dispute, and think about how it is likely to be resolved by the courts.

It’s important to talk about how we got here. The new Trump Administration rules flow directly from years of litigation by employers who claimed to have a religious objection to providing contraceptive services to their employees through subsidized health care plans. Remember that under the original Obama-era rules, houses of worship were exempt from the contraception mandate (leaving their employees with no contraception coverage at all), and nonprofit organizations with a religious objection could ask for an accommodation (whereby the organizations filed an objection with their insurer, and were excused from paying for contraceptive care, but the employees were still covered for no-cost birth control).

After the Obama rules went into effect, several privately-held companies sued, claiming that the contraception mandate violated the federal law known as the Religious Freedom Restoration Act.

RFRA, as it’s known, has three essential parts:

  1. The federal government cannot “substantially burden” a person’s religious exercise, even through a law or rule that applies generally, unless
  2. The federal government shows that the law furthers “a compelling governmental interest” and
  3. Uses the least restrictive means in achieving that interest.

There were two key questions in the Burwell v. Hobby Lobby Stores, Inc. about how to interpret RFRA. First, the Supreme Court ruled that a closely-held corporation qualified as a “person” under the law, and therefore had a right to bring a claim. Second, the Court assumed without deciding that providing no-cost contraceptive care was a compelling governmental interest, and held that limiting the accommodation to only nonprofit organizations was not the “least restrictive means” of achieving its goals.

So, the Obama Administration modified the rules, to allow closely-held corporations to take advantage of the accommodation process. But that didn’t satisfy the religious objectors. They continued to file lawsuit after lawsuit challenging the details of the accommodation process, claiming that the simple act of notifying the insurance company of their religious objection was itself a burden on their religious exercise, and that the federal government hadn’t used the least restrictive way of achieving its goals. Eight federal Courts of Appeal held that the accommodation process doe not impose a substantial burden on religion, and thus did not violate RFRA.

But the religious organizations kept going, taking the cases back to the Supreme Court, in Zubik v. Burwell. But the Court didn’t actually decide the dispute in Zubik, because, based on post-oral argument statements by the complaining nonprofits and the government, the Court believed the parties were close to working out a compromise. So it sent the matter back to the Obama Administration to work it out.  As one legal scholar noted after the Court’s punt in Zubik, the religious nonprofits didn’t want to agree to any accommodation process; they simply want to be included in the exemption that, under Obama, had only been available to houses of worship.

Which brings us to the current state of play.

The Trump Administration rules give the religious nonprofits everything they wanted, and go much further. Not only are religious nonprofits now exempt from the contraception mandate if they have a religious objection to birth control, but all such corporations are exempt as well –– closely-held and publicly-traded corporations. And they need not have a religious objection. Simply having a moral objection to contraception suffices.

The federal courts will face several tough questions in the eight pending lawsuits: has the Trump Administration gone too far? Does RFRA Act compel these rules as the “least restrictive means”? How do you square RFRA with moral but not religious objections? If RFFA doesn’t compel these rules, do they violate the Equal Protection Clause by discriminating against women? Or do they go too far in creating a religious purpose for government action, that violates the Establishment Clause?

We’ll have an answer soon in at least one of the cases, as Pennsylvania filed a motion in its case asking the court for a preliminary injunction — essentially, a court order freezing the rules until the merits can be fully resolved by the Court. And in its case, Massachusetts has a filed a motion for summary judgment, in which it asks the court to decide the claims without a trial.

Whatever the district courts decide in these cases, there will undoubtedly be appeals, perhaps all the way to the Supreme Court. With Justice Gorsuch having replaced Justice Scalia, and with no further changes in the composition of the Court, I can see this case coming down to Justice Kennedy. He is likely to play a pivotal role in the Court’s decision in Masterpiece Cakeshop, too, as he tends to be the bridge vote on contentious cultural and legal issues.

* An earlier version of this article reported that the Senate tax bill included the “unborn child” language as well, but that provision was removed prior to the Senate bill’s passage early Saturday morning, December 2, 2018.