Bye-Bye, Blaine Amendments

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Bad luck comes in threes, so they say. Sometimes so do good things, as demonstrated by three recent Supreme Court decisions on religious liberty. In a sea of recent bad news in the United States, we should welcome these rulings as a happy interruption that will hopefully provide some protection to the Catholic Church’s work and witness in the United States.

The first in our happy triduum was the June 30 ruling that the Montana state constitution’s ban on public funding of religious institutions violates the First Amendment. Montana’s law has a historic anti-Catholic pedigree. As one of the nation’s many “Blaine Amendments” (Montana’s was ratified in its 1889 constitution), it prohibited public funding of “sectarian” causes or religious institutions, which showed preference for anti-Catholic, implicitly Protestant public education to the detriment of Catholic institutions. The irony in this case, Espinoza v. Montana Department of Revenue, is that the institution in question, Stillwater Christian School, isn’t even Catholic.

The U.S. Constitution, asserted Chief Justice John Roberts in the majority opinion of the case, “condemns discrimination against religious schools and the families whose children attend them.” If secular private schools qualify for public aid programs, religious schools must have co-equal access, he added. Though the state’s revenue department argued that scholarships could only be applied to non-religious schools because of the “no-aid clause” in Montana’s constitution, Roberts decreed that the no-aid clause “plainly excludes schools from government aid solely because of religious status.” Many Catholic legal experts have lauded the decision, according to a July 5  article by the Catholic News Service.

In the second case on July 8, the Supreme Court ruled in Little Sisters of the Poor v. Pennsylvania that the Little Sisters cannot be compelled to cooperate in providing contraceptive coverage to employees in their homes for the elderly under the federal Affordable Care Act (ACA), legislation enacted during the Obama administration. The decision followed a 2016 decision that ordered the Little Sisters and the federal government to reach an agreement that respected the Sisters’ conscientious opposition to contraception. The Trump administration then directed the Department of Health and Human Services (HHS) to craft a rule to shield religious groups from the ACA’s contraceptive mandate.

Justice Clarence Thomas in his majority opinion declared that HHS possessed the authority to exempt the Little Sisters from the contraceptive mandate. The Religious Freedom Restoration Act of 1993, he added, also ensures the religious order with legal protections. Attorney Adele Keim, attorney at the Becket Fund for Religious Liberty, told Crisis: “Little Sisters was an important moment for religious liberty in this country.” Indeed, if the court had ruled differently, it “would have called into question potentially hundreds of cases regarding religious exemptions.”

Third and finally, our highest court ruled in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel that teachers in Catholic parochial schools should be designated as “ministers of the Church” and are thus not covered by federal job discrimination law. Two parochial schools in Los Angeles had separately refused to renew the contracts of two teachers because of poor classroom performance. The two teachers claimed to have been fired for other reasons—one because she had breast cancer and the other because of her age.

Justice Samuel Alito writing in the majority opinion reversed a decision by the 9th U.S. Circuit Court of Appeals (which had ruled in favor of the teachers). Alito explained that the First Amendment’s religion clauses prohibit courts from getting entangled in quarrels involving ministerial personnel. Moreover, Alito argued, the Catholic school teachers qualified as ministers of the Church. Keim says the decision is in accord with forty years of jurisprudence—including twice in the last decade—regarding how the court interprets Title VII of the Civil Rights Act regarding employment discrimination and legal protections enjoyed by religious organizations.

Archbishop Thomas G. Wenski of Miami, chairman of the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty, and Bishop Michael C. Barber of Oakland, chairman of the Committee on Catholic Education, praised the decision in a July 8 press release. They declared: “As institutions carrying out a ministry of the Church, Catholic schools have a right, recognized by the Constitution, to select people who will perform ministry. The government has no authority to second-guess those ministerial decisions. We welcome the Supreme Court’s decision, which rightly acknowledged this limit on state authority. This decision means that the Church can continue to serve her neighbors with integrity.”

Justice Sonia Sotomayor, who opposed the decision, argued in her dissenting opinion that the majority’s interpretation of the ministerial exemption grants religious employers unwarranted, excessive freedom to fire employees. The ruling allows “religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs,” claimed Sotomayor. “Everyone agrees that the ministerial exemption is strong medicine,” acknowledges Keim. “It is a strong, robust protection of internal affairs of religious organizations.” “Religious organizations have a sphere of autonomy, and it is up to themselves how they use that freedom,” Keim continued. “This is about respecting people’s voluntary religious associations.” In the religious sphere, “the state has no business telling religious groups how to run their business.”

The latter two cases, says Keim, will have an immediate impact on religious liberty cases across the country. She cites as one example Roman Catholic Diocese of Albany v. Vullo, which sought to challenge health insurance policies in the state of New York that provide coverage for “medically necessary” abortion services. “That case is now making its way through the state courts,” she said. Moreover, in regards to the ministerial exemption, there are cases involving people who were fired because of entering into same-sex marriages. The court’s ruling in Our Lady should inform federal and state courts in those cases as well.

Keim hopes the decisions will inform not only the “back end” of the legal system (meaning these kinds of court cases), but also “encourage governments to protect and keep in mind religious objectors” when drafting or amending legislation. For a brief moment, Catholics can thank God for these victories. We’ll also need to pray for His continued assistance to protect our religious freedoms in the future. Undoubtedly, we’ll be back in the fray soon enough.

Casey Chalk

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Casey Chalk is a senior contributor at Crisis. He holds a Masters in Theology from Christendom College.

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