Monday, July 13, 2020
Editors' Note: Congratulations to Professor Ho. Last month Prof. Ho was awarded the Manning Prize for Teaching. This award is a university wide honor with honorees designated by the Office of the President of the University of Massachusetts system.
My recent post here on the Supreme Court’s Title VII decision in Bostock noted how Justice Gorsuch continued to uphold religious freedom despite affording LGBTQ individuals anti-discrimination protection at the workplace. At the end of his majority opinion in Bostock, Justice Gorsuch quoted Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and alluded to exceptions under First Amendment that might interfere with Bostock’s protective reach against employment discrimination for LGBTQ employees. Here is the quote:
"We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society But worries about how Title VII may intersect with religious liberties are nothing new; they even predate [Title VII’s] passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)."
After Bostock last month, the Court then released three decisions upholding religious freedom. In Espinoza v. Montana Department of Justice, the Court ruled that Montana could not exclude religious schools from state funding. Then in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court sided with employers with “sincerely held religious or moral objection[s]” who declined to provide employer-covered contraception. And lastly, in Our Lady of Guadalupe School v. Morrissey-Berru, the Court used the ministerial exception to permit church-run schools with religious instruction to terminate teachers without violating federal employment discrimination laws. The last two cases—and in particular, Our Lady of Guadalupe School—seems to align with Justice Gorsuch’s specific reference to religious freedom in Bostock. If read together with Bostock, Our Lady of Guadalupe School would likely exempt acts of employment discrimination against LGBTQ individuals by religious employers.
Although one might easily believe that these religion cases and others this Term were reached purely through the politically conservative block of justices at the Court, the truth is actually more complicated. Espinoza was a 5-4 decision with the known conservative justices tipping the votes to favor religion. However, Little Sisters and Our Lady of Guadalupe School were both 7-2 decisions, showing the divisions were not necessarily on political lines. In 2018, Masterpiece Cakeshop, was also a 7-2 decision that favored the Christian baker over the same-sex couple who tried to buy a cake for their wedding party.
Some observers do think firmly that President Trump’s Supreme Court appointments have made the difference in strengthening religious freedom. Hugh Hewitt from The Washington Post makes that point clear in his op-ed last Thursday . However, Michael McConnell from Stanford Law offered a more nuanced take in his op-ed in The New York Times on the same day, noting that the outcomes of this term’s religion cases, determined not always along conservative progressive lines shows the court’s attempts to “protect pluralism.” Professor McConnell reached this perspective by examining together many of the cases this term that involved “culture war” issues per se—i.e. immigration, sexual orientation, and religion—and noting that in the aggregate not all cases were determined with conservative views prevailing.
Pluralism may be one aspect, but I’m also concerned with the way religion can be a cover for marginalization. As I’ve argued here and elsewhere, religious freedom tends to be a way to reify establishment norms regarding race, gender, and sexuality, particularly when the religion that is challenged in these cases (or making the challenge) is within the Judeo-Christian tradition. Although there is a line of scholarship that has pointed out that the Court engages in anti-balkanization practices when it wants to avoid cases that would trigger social upheaval—and perhaps Professor McConnell’s view on pluralism protection has resemblances to that observation—my concern is toward the Court’s refusal in these religious cases to skew against anti-subordination or skew against a clearer separation between church and state. Especially as we will likely encounter more challenges ahead that will involve “culture war” entanglements with religion, it is very apparent that the Court seems to side with the religious perspectives more often than other perspectives. I question whether that is effectuating pluralism, and even if so, whether the inequality that persists is the just end we seek.