Supreme Court Session in Review: A Wake-Up Call for Catholics
COMMENTARY: An in-depth look at the court's 2019-2020 term reveals some implications for Catholics — not to mention the rule of law — that are profoundly worrisome.
The U.S. Supreme Court ended its 2019-2020 term earlier this month with a flurry of decisions. I hope that this quick overview of some of the court’s most consequential decisions inspires Catholics to be steadfast in prayer for the high court to defend what is good, true and beautiful, even when it miserably failed to do so on too many occasions.
Illustrating the capacity of our system of government to function in the face of crisis, the Supreme Court heard a number of oral arguments telephonically and issued decisions in all of the cases it reviewed before its summer recess.
Alas, two of those decisions typified something sadly familiar: the unreliability of certain supposedly conservative justices who suddenly go off the rails and support the “progressive” political agenda.
There the court held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of an individual’s race, color, religion, sex or national origin,” makes it unlawful for an employer to fire an individual for being gay or transgender.
Put like that, the court’s decision doesn’t sound too outrageous. But delve deeper, and it immediately becomes clear that the implications for Catholics — not to mention the rule of law — are profoundly worrisome.
Justice Neil Gorsuch, author of the majority opinion in Bostock, claimed to employ a method of statutory interpretation known as “textualism.” This is the method of interpreting a law based on its ordinary meaning. In 1964, nobody considered “sex discrimination” to include discrimination based on sexual orientation, much less gender identity. Gorsuch’s argument was, to put it politely, convoluted. Justice Samuel Alito was less diplomatic. In his dissent he charged that Gorsuch’s opinion “sails under a textualist flag” but is more like a “pirate ship.” And he added, very significantly, “There is only one word for what the Court has done today: legislation.”
As I wrote previously, there is more “Bostock-made mischief ahead.” Many federal statutes — Justice Alito identified more than 100 — that outlaw discrimination “because of sex” will likely be subjected to Bostock’s broad reasoning. Hospitals, stores, schools and government-funded social-service programs should ready themselves to be “inspected” by “LGBT” activists. Those not deemed gay- or trans-friendly will face exacting scrutiny under this new legal reality.
Hysterics is often the immediate response to a wrongly decided case. Bostock is no different.
Missouri Sen. Josh Hawley announced on the U.S. Senate floor that Bostock marks “the end of the conservative legal movement or the conservative legal project as we know it.” Hawley, determined to make a stir, consigned textualism and another conservative legal principle, originalism, to the dustbin of history. He did not, however, offer a practical way for moving forward. By contrast, the three Bostock dissenters offered a more convincing argument: Gorsuch simply got textualism wrong.
A second disappointing decision came in June Medical. The high court declared unconstitutional a Louisiana law requiring doctors performing abortions to have admitting privileges at nearby hospitals. The majority pointed to a 2016 ruling that overturned a nearly identical law in Texas.
Justice Stephen Breyer, joined (inevitably) by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, proposed courts use a balancing test to assess whether a particular abortion regulation places an undue burden on a woman’s access to an abortion. Chief Justice Roberts concurred in the decision, but refused to adopt the four liberal justices’ reasoning. Nonetheless, Roberts concluded that the Louisiana law “burdens women seeking pre-viability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.” As I wrote in an analysis of the decision, “‘precedent’ in this case may have been upheld, but it is a very dangerous precedent for women in Louisiana.”
Now for the good news. Although the Bostock and June Medical decisions are grave disappointments, the high court declared three important victories for religious freedom.
In Espinoza v. Montana Department of Revenue, the court erased the vestiges of century-old anti-Catholic bigotry in the United States. A provision in Montana’s constitution — a state “Blaine Amendment” — bars public money from aiding “sectarian” schools and was used to dismantle a tax-incentive program benefiting donors to private-school scholarship funds. The court clarified that the First Amendment’s free-exercise guarantee required the program to be available for use at all private schools, including religious ones. “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” explained the majority.
Espinoza hopefully sounds the death knell for state Blaine Amendments, which are found in more than 35 state constitutions. As I wrote in an analysis for the Register, at a time when the fate of our nation’s Catholic schools is uncertain and many parents are looking for alternatives to public education, Espinoza comes none too soon.
Religious freedom received another boost after the court in Little Sisters of the Poor v. Pennsylvania confirmed that the federal government has the statutory authority to guard against the Affordable Care Act’s “contraceptive mandate” trampling the rights of religious objectors. Justice Clarence Thomas explained that Congress granted the executive branch broad discretion to both decide which services were preventative-care services and which employers could be offered religious and moral objections. Having confirmed that the Trump administration had the authority to craft rules exempting religious objectors like the Little Sisters, the high court remanded the case for the lower court to consider the remaining objections of the Pennsylvania and New Jersey attorneys general.
Justice Kagan, joined by Justice Breyer, voted with the majority but wrote a concurring opinion that reads more like a dissent. “I also write separately because I question whether the exemptions can survive administrative law’s demand for reasoned decision making,” Kagan asserted. Many legal commentators have worried about the dark cloud of Kagan’s concurrence that lingers over the victory for the Little Sisters. So it’s worth noting that lower courts are not obliged to follow concurring opinions.
If the lower court is looking for guidance to avoid another reversal from the high court, the well-reasoned concurring opinion of Justice Alito is where it should turn instead. “In my judgment, the Religious Freedom and Restoration Act compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate,” explained Alito. “RFRA” demands that the federal government not substantially burden religious exercise unless it serves a compelling state interest and is done in the least restrictive means possible. The zealous attorneys general from Pennsylvania and New Jersey, wholeheartedly supported by Joe Biden, should have a hard time convincing any court that RFRA permits the federal government to hijack health-insurance plans of religious objectors like the Little Sisters in order to supply women with free abortion pills.
Finally, in Our Lady of Guadalupe School v. Morrissey-Berru, the court held that the First Amendment protects the right of Catholic schools to decide who imparts the faith to the next generation without government interference. “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow,” explained Justice Alito.
As I wrote for the Register, the high court’s application of the “ministerial exception” to Catholic schools is particularly important in light of Bostock. Without this protection, Catholic parochial schools would be forced to hire “trans” applicants or unable to fire teachers living in relationships contrary to Church teaching on marriage and human sexuality. In fact, Bostock recognized that its ruling might “require some employers to violate their religious convictions” and that protections such as the ministerial exemption for religious employers were “questions for future cases too.” Our Lady of Guadalupe directs courts to decline review of Bostock-like claims when a Catholic school decides not to hire or fire someone for positions covered under the ministerial exception.
The Supreme Court in Bostock and June Medical dealt grave blows to the rule of law and the inherent dignity of the human person. Almost in the same breath, however, the high court safeguarded religious belief from interference by the government in Espinoza, Little Sisters of the Poor and Our Lady of Guadalupe.
Such unpredictability might tempt some Catholics to fall into despair, or to demand that judges use radical-but-ill-defined philosophies dreamt up by utopian “conservatives.” Both temptations should be resisted. Instead, we should pray that in the coming term the men and women on the high court defend the divinely revealed truth about the human person and the sanctity of life; and, just as important, that they faithfully use conservative legal principles to ensure that these truths are once again held to be self-evident.
Andrea Picciotti-Bayer is a legal analyst and regular Register contributor.