WASHINGTON — The Supreme Court announced Friday that it was postponing oral arguments scheduled for April due to the COVID-19 pandemic. So what does that portend for a number of religious-liberty cases now before the court, affecting groups like the Little Sisters of the Poor, Catholic schools and Catholic foster-care agencies?
Mark Rienzi, president of Becket, addressed the practical consequences of these postponements for religious-liberty cases on a press call Tuesday. He explained that there were some cases where the justices of the court will release their opinion in due course, as the oral arguments had already been heard. There also are a few cases where the oral arguments have been postponed, and, looking ahead to next term, there are other cases that could be affected, depending on how long the oral-argument postponements continue.
According to the Supreme Court’s statement, the court will “consider rescheduling some cases from the March and April sessions before the end of the term, if circumstances permit in light of public-health and safety guidance at that time” and will also “consider a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term.”
Cases With Decisions Expected Soon
In Espinoza v. Montana Department of Revenue, the court is examining whether religious schools can receive funds from the state’s 2015 tax-credit scholarship program.
Rienzi explained that “the Montana state Supreme Court struck down a tax-credit program under the state’s Blaine Amendment, which is an archaic anti-religious law from the 1800s that forbids any funding from going to any school owned and operated by any religious group.”
Currently, he said, “the court is considering whether that kind of state law, given its discriminatory history and its discriminatory effect, is unconstitutional and whether religious groups have to be treated the same as all other organizations when it comes to widely available public-benefit programs.”
Becket and the U.S. Conference of Catholic Bishops have submitted briefs on the side of the parents who wanted the tax-credit program to apply to their children’s Christian schools.
Following oral arguments in January, the justices appeared divided. Rienzi said that for this case, “the justices have indicated that they are still continuing proceeding with their decisions, so in the ordinary course you’d expect that decision really any day now. The latest it would be is by the end of June, at the end of the term.”
Another case with a decision pending soon is Bostock v. Clayton County, Georgia, which is part of three cases, including Altitude Express Inc. v. Zarda and Harris v. EEOC, that “concern the question of: What did Congress mean in the Civil Rights Act of 1964 when it banned discrimination because of sex?”
For these cases, “the question the court is considering is: Does that include other things like sexual orientation and gender-identity discrimination?” Rienzi said. That decision could have major implications for the religious freedom of faith-based groups.
Cases With Postponed Oral Arguments
Oral arguments have been postponed in a case involving whether the government can interfere with a Catholic school’s decision to hire or fire teachers who impart the faith to students. Our Lady of Guadalupe School v. Morrissey-Beru and St. James School v. Biel, Rienzi said, “both concern the question of teachers who teach religion in parochial schools. Their question is whether the government has the ability to decide who a religious school should hire or keep in the role of teaching the faith to children in a religious grammar school.”
“They are cases that were supposed to be heard during the March sitting,” he said. “The briefs are now fully in and before the court. The next thing we’re waiting to see is whether at some point this spring the court feels like it’s possible to have oral arguments in the traditional sense in the court. The justices have said that they will consider their options in light of changing events as things go forward. We’re waiting to see what happens and what the court decides is possible.”
Another case with postponed oral arguments is Little Sisters of the Poor v. Pennsylvania, which involved a challenge from Pennsylvania and California to the Trump administration’s religious exemption given to the Little Sisters from the Affordable Care Act’s contraceptive mandate.
“The initial question in those cases was whether the federal government needed to provide a religious exemption to the Little Sisters and to other religious groups so that they did not need to provide contraception and abortion-inducing drugs in their health plans,” Rienzi explained. “The federal government eventually conceded that it actually had many other ways to get people contraceptives, but after the government did that, several states sued, saying that it’s actually illegal to give the Little Sisters of the Poor a religious exemption from the federal constitutional mandate.”
He said that “the briefing is almost done” in that case, and it was originally set to be argued as the last case of this term on April 29, but will now be in the “wait-and-see” group of cases.
Rienzi said that the case is urgent in the sense that “the Little Sisters are trying to get clarity and get this out of the way,” but for the Little Sisters themselves their “daily and unwavering focus is and has always been taking care of the elderly people who are particularly in danger right now.”
Looking Ahead to Next Term
One religious-freedom case that is scheduled for the court’s October term is Fulton v. City of Philadelphia. It examines “whether the city of Philadelphia can shut down Catholic Charities foster and adoption program because Catholic Charities provides referrals for people who are either in opposite-sex unmarried relationships or for same-sex couples.”
“The city cut them off from all new placements in the spring of 2018, even though there had never actually been a complaint against them; they had never actually turned anybody away,” Rienzi said. “They are continuing to serve children who were placed previously with their foster families, and they have continued to serve them as things have wound down. They have lost some employees; they have lost some children. They have families who are ready and willing to help with foster children, but the city is refusing to place children with those families because they work with Catholic Charities.”
“The briefing is moving forward in that case,” Rienzi said. “In the ordinary course, we would expect that case to be argued in October because it should be one of the first cases for next term. Obviously, the x factor is we’re not in ordinary times, and we don’t know exactly what the court will do with the March and April cases and whether that has the possibility of Fulton getting pushed back.”
Potential for Future Religious-Liberty Litigation
Rienzi briefly addressed a question about litigation arising from the COVID-19 restrictions on places of worship. He said that when government orders say “people can’t get together for any reason, I would think the government has a pretty strong argument that it’s not discriminating against religion and it’s not singling religion out, which is why, for the most part, I think churches are willingly going along with it, recognizing that they want to and need to do their part to keep people safe.”
“The vast majority of what you’ve seen is religious groups voluntarily going along with the government’s orders,” he said. “They’re trying to protect and preserve life, and they’re being quite creative with their ways of doing drive-thru sacraments and ways to keep people apart and doing things over the internet.”
As for the religious-liberty cases currently before the court, Rienzi said that “everybody in all of these cases is looking at it and perfectly understands that the justices can’t get a few hundred people in a room to have an argument right now.”’
In a Federalist Society call Tuesday, Becket’s vice president, Luke Goodrich, addressed whether the Supreme Court might turn to new technologies if the COVID-19 restrictions continue.
“In fact, there are a number of district courts and several federal circuit courts that have started hearing oral arguments and other sorts of hearings via teleconference,” Goodrich said. “There’s been no indication yet that the court is going to head in that direction. I would be surprised if it did. It has never done that before, but if this goes on long enough, you could imagine pressure mounting for the court to consider alternatives like that.”
He referenced the “long-standing debate over whether the Supreme Court should televise its arguments or at least make live audio available of its arguments,” pointing out that “the justices have been very resistant to that over time, even though courts of appeals quite often do oral arguments via video conference.”
“I think this is going to renew that debate and may add fuel to the fire,” he said. “It would take some pretty prolonged inability to do in-person oral argument for the court to go in that direction, but it may be something they take a closer look at in light of the current circumstances.”
Lauretta Brown is the Register’s Washington-based staff writer.