U.S. religious battles need not be winner-take-all

Religious organizations perform crucial public services — educating children, caring for the sick, sheltering the homeless. Yet changing mores have led governments to increasingly demand that these organizations subordinate their beliefs as a condition of continuing these missions. In three recent Supreme Court cases, the justices had to decide: Can religious groups participate in public life while still determining for themselves how they operate and how they live their beliefs?

In all three cases — two of which were brought by my firm, the Becket Fund for Religious Liberty — the court affirmed religious groups’ right to participate in public life while upholding their beliefs. In doing so, the court likely has forestalled the prospect of a zero-sum showdown that has made debates over religious liberty needlessly toxic.

In Little Sisters of the Poor v. Pennsylvania, decided Wednesday, the ministry of nuns who care for the elderly poor was at stake. Being Catholic nuns, they objected to a federal mandate issued pursuant to the Affordable Care Act requiring that employers provide insurance coverage for contraception and abortifacients and said the government’s proposed workarounds still required their moral complicity in actions they opposed. The Obama administration argued that the sisters were not, in fact, burdened by the mandate but were “fighting an invisible dragon.” The government tried to force the nuns to pay what they said would amount to $ 70 million in annual fines as the price of continuing their mission. The Trump administration, by contrast, issued broad protections against the contraceptive mandate for employers objecting because of “sincerely held religious beliefs.” But Pennsylvania and New Jersey sued, claiming those safeguards were unlawful. Last week, the Supreme Court held that the administration could legally offer these protections.

Our Lady of Guadalupe School v. Morrissey- Berru, also decided Wednesday, confirmed that the autonomy the Constitution affords religious organizations includes deciding who teaches religion at Catholic elementary schools. The two teachers at issue claimed they were wrongly not offered new annual contracts — one allegedly because of disability discrimination and the other because of age discrimination. The schools disputed those claims and countered that the teachers’ responsibilities included religious instruction and so, under the First Amendment’s “ministerial exception,” federal anti- discrimination law is inapplicable. The court held that the “ministerial exception” did indeed place employment decisions about these religion teachers in the hands of religious institutions, not civil courts.

In Espinoza v. Montana Department of Revenue, decided June 30, Montana’s Supreme Court had struck down a scholarship program that allowed the state’s students to attend the school of their choice. Why? Because the state constitution contained a provision, rooted in anti- Catholic bigotry, denying “sectarian” schools equal access to public programs. The Supreme Court said this exclusion of religious schools was inconsistent with the Constitution’s free- exercise clause.

In each case, the Supreme Court held that religious groups are free to maintain their public ministries — without surrendering to the government the power to decide how they are governed or what they believe. These decisions extended a promising trend: In the past decade, the Supreme Court has heard 15 religious- freedom cases, and in every one it protected religious claimants against government efforts to limit their activities because of their beliefs.

In taking this approach, the court is confirming that a truly free society must preserve space for religious organizations to provide public services while adhering to their beliefs alongside broader policy- making that might be at odds with those beliefs. In Little Sisters, the court preserved the contraceptive- coverage mandate for most employers. But it also allowed the Trump administration power to protect the Little Sisters from having to participate. In Bostock v. Clayton County, decided last month, the court ruled that the Civil Rights Act bars employers from discriminating based on sexual orientation and gender identity, which could threaten religious organizations. But in Our Lady of Guadalupe, the court also ensured that, on the foundational question of who may teach religion, religious institutions are free to decide for themselves. And in Espinoza, the court held that if secular schools are being supported in their efforts to educate needy children, there must be space for religious schools, too.

In other words, the court is demonstrating that disputes over religious liberty need not be winner-take-all.

While the court has clearly ruled in favour of religious liberty over the past decade, this debate likely will remain central to the justices’ work in the years to come. As soon as this fall, they will hear another Becket case, Fulton v. City of Philadelphia — which will address whether the city can shut down Catholic Social Services’ foster care ministry because the agency, consistent with Catholic beliefs, cannot provide written endorsements of same- sex marriages. If asked, the agency would refer a same- sex couple to one of 29 other agencies, including several with expertise in serving LGBTQ families. But for the city of Philadelphia, this accommodation is not enough.

The court’s recent decisions suggest that in Fulton, too, the justices will encourage religious Americans and those who disagree with them to live and let live. If they do, the justices will hopefully help people on all sides produce a healthier and more respectful political climate. William J. Haun is counsel at the Becket Fund for Religious Liberty, which represented the Little Sisters of the Poor, Our Lady of Guadalupe School and

St. James Catholic School, and also represents Catholic Social Services, before

the Supreme Court.