- Jordan Lorence, Alliance Defending Freedom
Mr. Gregory S. Baylor of Alliance Defending Freedom discussed current and future challenges to the religious freedom of faith-based institutions of higher education, with a special focus on the ongoing debate over California Senate Bill 1146. Earlier versions of SB1146 would have significantly curtailed longstanding religious freedom protections in state anti-discrimination law, thereby exposing faith-based schools to liability for discrimination on the basis of religion, sexual orientation, and gender identity in student and employee relations. The bill's prime sponsor recently removed its most controversial provisions, but he indicated that a similar bill may be proposed in the next legislative session.
The Supreme Court has agreed to hear Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case focuses on religious liberties and the Establishment Clause, and whether the First Amendment allows states to disfavor religious institutions. The Missouri Constitution has a clause against the use of public funds for religious entities, reading “that no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion…” In this case, The Department of Natural Resources turned down a request by a church-run preschool for a grant for new rubber ground in their playground. Does the exclusion of churches from an otherwise neutral and secular aid program violate the constitution? Our experts join us today to discuss the upcoming case and to give some background on the relevant precedent in this area of law.
Prof. Michael W. McConnell, Director of the Stanford Constitutional Law Center and Senior Fellow at the Hoover Institution, discusses the recent Supreme Court case of Zubik v. Burwell. The case dealt with whether religious institutions should be exempt from the “contraceptive mandate” of the Affordable Care Act, specifically due to the provisions of the Religious Freedom Restoration Act of 1993.
On May 16, 2016, the Supreme Court decided Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.
The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Federal regulations require petitioners to cover these contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners resisted, asserting that submitting the notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993. The ensuing litigation yielded different outcomes in different U.S. Courts of Appeals, and the Supreme Court granted certiorari. Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”
After receiving the supplemental briefs the Supreme Court vacated the judgments of the Courts of Appeals by a vote of 8-0 and remanded the cases to the Third, Fifth, Tenth, and D.C. Circuits, respectively. The Court’s per curiam opinion explained that “‘the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Furthermore, the Court indicated it was expressing no view on the merits of the cases and stated that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA-approved contraceptives.’" At the same time, the Court noted, throughout this litigation, petitioners had made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds” and nothing in the Court’s opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward.” And because the Government may rely on this notice, the Court indicated, “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”
Justice Sotomayor issued a concurring opinion, joined by Justice Ginsburg.
To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.