Or Prohibiting the Free Exercise Thereof

The Supreme Court recently issued three eagerly awaited end-of-term decisions concerning important church-state issues: state aid to religious schools (Espinoza v. Montana Department of Revenue); the meaning of the “ministerial exemption” in employment discrimination cases (Our Lady of Guadalupe School v. Morrissey-Berru); and exempting religious employers from the contraception insurance coverage mandate under the Affordable Care Act (ACA) (Little Sisters of the Poor v. Pennsylvania). Many religious communities, including Jewish ones, cheered loudly. My cheering was more muted.

But let me first turn the clock back a few years to a wonderful lecture I heard on church-state issues by Michael Avi Helfand, professor of law and associate dean for faculty and research at Pepperdine University Caruso School of Law. Avi (as I’ll refer to him since I not only know him personally, but his family and I also go back to my Far Rockaway days, when his grandparents were my neighbors and his mother my elementary school classmate and friend) is one of the country’s leading experts on religious law and liberty. Moreover, his profound knowledge of the legal intricacies of this complex area is coupled with a deep understanding of the Orthodox community in which he grew up and of which he is a member.

He began his lecture by doing what good advocates do — he told engrossing stories to help support the legal points that were the meat of his presentation. In moving terms, Avi told the stories of how several individuals and groups confronted serious barriers to their right of free exercise of religion: Adell Sherbert, a Seventh Day Adventist mill worker who lost her job and unemployment insurance benefits because she wouldn’t work on Saturdays; a member of the Native American Church who similarly lost his job and unemployment benefits by smoking peyote as part of a religious ritual even though it violated a state prohibition; and members of the Afro-Cuban religion Santeria, who were barred by a city ordinance from bringing animal sacrifices as part of their religious rituals.

As Avi intended, by the end of his introduction and story-telling, the audience was convinced that all these individuals and groups were unfairly deprived of their religious rights — as they were.

He then proceeded to discuss more current free exercise issues including what was then (and still is) a deeply controversial question: can a Christian professional baker, who is against same sex marriage for religious reasons, refuse to bake a wedding cake for a same sex couple’s nuptial celebration? During the Q&A, someone commented (okay, it was me), that there appeared to be a difference between the first three cases and the cake one. In the earlier cases, the religious liberty rights of devout people were being undermined by the power of the state and its laws. There were no other victims; there was only one story to tell.

In the cake case, however, there were two victims and two stories; that of the innocent, sincerely religious baker and the one of the similarly innocent gay couple with their newly granted rights and protection against discrimination. Unlike Sherbert, all involved had rights that deserved protection and feelings that were worthy of respect. Whatever the legal result, the two-story baker case is different in kind from the one-story Sherbert-type cases.

Avi and I continued to discuss this issue over the next few years, and though I wouldn’t presume to speak for him, I think our views on the baker case are pretty close. Which brings me to the final week of the most recent Supreme Court term (where our views, while overlapping, are perhaps not quite as close).

In Espinoza, the Supreme Court held that a state that grants tax credits for donations to nonprofits that provide private school tuition scholarships cannot deny credits for donations to nonprofits that provide scholarships to private religious schools. The essential point: states cannot discriminate against religious institutions based merely on their status as religious institutions. This is a one-story/one-victim case.

In Our Lady of Guadalupe, though, we’re back to two stories, where upholding the rights of religious institutions results in real harm to those of its employees. There, religious schools fired lay teachers who were involved in students’ secular and religious education. The teachers claimed they were fired for discriminatory reasons (age and disability) protected by the Civil Rights Act (CRA); the schools claimed the reasons were non-discriminatory.

As a threshold matter, however, the schools relied on the Supreme Court’s earlier “ministerial exemption” rule that provides that in order to ensure that the ecclesiastical function of selecting and controlling ministers who personify a religious institution’s beliefs resides solely in the institution as protected by the First Amendment, anti-discrimination laws don’t apply to such relationships. The schools therefore argued that federal courts were barred from adjudicating the dispute.

The main issue in Guadalupe was who is a “minister” for exemption purposes, including whether ordination is a required element. The court correctly held that under the rule ministers needn’t be ordained, but also made the definition broad enough to include the teachers, thus denying them their day in court on their discrimination claims.

Two compelling stories. One about freedom of religion, which is fundamental to our country’s ethos and has made our nation a haven for those whose faith had been suppressed. The other speaks to the teachers’ fundamental human dignity and ability to participate in the most basic aspects of civil society free from invidious discrimination.

Little Sisters of the Poor also is a two-story case concerning an order of nuns that has religious objections to contraception use. It argued that requiring the order to take any action at all as an employer relating to its employees obtaining health insurance, including contraception coverage as mandated by the ACA, violates its free exercise rights.

The court dodged the religious issue by deciding the case in the nuns’ favor on administrative law grounds. The bottom line, though, was that the nuns’ religious convictions overrode the essential health care needs of their employees. And if you don’t consider contraception essential health care, just imagine a case with Jehovah Witness employers and non-coverage of blood transfusions.

So if the religious side won all three cases, why am I, a staunch Modern Orthodox Jew, not cheering as loudly as many of my compatriots?

Well, I am cheering the Espinoza result. My view of government aid to religious schools has evolved over the years, and I now agree that Espinoza’s balancing of the equities is correct. The Constitution doesn’t require that religious institutions be treated worse than secular ones. Indeed, treating them equally for matters other than the strictly doctrinal (e.g., a grant to study theology; see Locke v. Davey) helps support the schools’ free exercise rights and doesn’t step over Establishment Clause red lines or impinge others’ rights.

But in the other two cases, the religious institutions weren’t asking to be treated the same as secular ones; they were asking to be treated better. Other employers can be sued for discrimination and are required to provide contraception insurance coverage; these religious employers demanded, and were granted, exemptions from those otherwise universal obligations. Even if there had once been an atmosphere of discrimination against religion, these cases, to quote from the dissent of Justice Ginsburg (may she live and be well) in Guadalupe, “swing the pendulum in the opposite direction.”

I’m a strong advocate of religious freedom, and believe that it and the other precious First Amendment rights express our nation’s deepest core values. But the crux of that freedom is the right to believe, worship, and practice as dictated by one’s faith without government interference; to be treated like all other citizens and groups without regard to religion. One story; a personal story of creed and conscience.

But life is complicated, and sometimes there are two stories in which fundamental rights clash, as they do in Guadalupe and Little Sisters. And in such cases, three choices emerge: religious rights prevail, the other rights prevail, or some middle road is found upholding the rights of all, albeit in a necessarily imperfect way.

That didn’t happen in Guadalupe and Little Sisters. The institutions’ religious rights were upheld and the employees’ non-discrimination rights and health care needs rejected. While I understand that a middle ground may not exist in all cases, I think that people of good faith could have found a compromise — imperfect, as all compromises are — to resolve these cases. I know others disagree, and this column is not the place to flesh out what would be a highly technical legal discussion on that issue.

But those details aside, what mainly muted my cheers was the sense of triumphalism that greeted the decisions; the excitement that religious freedom won without any expressed regret that anti-discrimination and health care lost. I would have hoped that religious institutions and their supporters — and I’m a devoted supporter — would have been both happy that they won and sad that their employees lost; that they would have understood the need, going forward, to search for ways to sustain legitimate rights of all parties.

I’ll continue to cheer, as I did here, for one-story victories. And I look forward to the day I can rejoice over the results of two-story cases where all rights are respected, and no one loses completely.

About the Author
Joseph C. Kaplan, a regular columnist for the Jewish Standard, is the author of “A Passionate Writing Life: From ‘In my Opinion’ to ‘I’ve Been Thinking’” (available at Teaneck's Judaica House and its website). A retired lawyer and long-time resident of Teaneck with his wife Sharon, they’ve been blessed with four wonderful daughters and five delicious grandchildren.
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