SCOTUS 2020 year-in-review, or: Why Alexander Hamilton may have spoken too soon.
Alexander Hamilton famously called the federal judiciary the “least dangerous” of the three branches of the United States government — a claim that requires some qualification in light of history, and especially in light of recent history. Hamilton predicted that the judiciary would be “next to nothing” because the courts would have “no influence over either the sword or the purse.” He laid out his claims in no. 78 of theFederalistpapers, where he explained them also in view of the maxim that that the courts would “have neither force nor will, but merely judgment.”
Not so fast.
As every year in recent memory, the 2020 version of the U.S. Supreme Court casts serious doubt over those predictions, especially concerning religious faith and practice. Three representative decisions related to religious liberty demonstrate that the Court’s influence over major issues of social and civic life is broad and deep.
The first decision (on the combined cases, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission; Bostock v. Clayton County; and Altitude Express, Inc. v. Zarda) is not about religious liberty, per se. But the Court’s ruling has potentially devastating implications for the free exercise of religion, including how religious institutions may hire, fire, or promote their employees.
Title VII of the 1964 Civil Rights Act prohibits workplace discrimination “because of [among other things] sex.” In these consolidated cases, the Court was asked to decide whether “sex” means not merely biological sex (as it indisputably did when the legislation was passed in 1964), but also means “sexual orientation” and “gender identity.”
In Harris Funeral Homes, a male long-time director of a funeral business was fired because, “self-identifying” as female, he began wearing dresses and otherwise presenting as a woman for work, violating the firm’s long-standing dress policy for its male employees. The employee sued, alleging that his employer violated Title VII, because “sex” means “gender identity.” In Bostock and Altitude Express, two employees who were fired because of their open identification as same-sex-attracted sued their former employers, alleging that the definition of sex under Title VII also includes “sexual orientation.”
Writing for the Court’s majority, Justice Gorsuch argued that “but for” the three employees being the biological sex that they were, they would not have been fired for their gender identification or sexual orientation. Thus, Gorsuch maintained, they were fired “because of” their “sex.” For example, the argument went, if the funeral director were a woman, he would not have been fired for wearing a dress to work. Similarly, if the other employees were female and preferred sex with males, they would not have been fired. “But for” their biological sex, they would not have been fired for their gender identification or sexual preference. Thus, the Court held, their terminations were discriminatory under Title VII.
Gorsuch does not maintain that either the decision or the reasoning are contemplated by—or even consistent with—the intention of the Congress in 1964. But no matter: Gorsuch’s “textualism” allows the grammatical reading and thus supports the sophistic conclusion. It is akin to concluding that the sentence “I’ll be on the radio this afternoon” means that I will be standing or sitting on an electronic device used for listening to music or news programs. Of course, no native English speaker would take that meaning from the sentence. Because the sentence bears that meaning, it is nevertheless a legitimate “textualist” reading. When the stakes are as large as the Title VII cases, such reasoning is not merely dangerous, it is pernicious.
[T]he Supreme Court of the United States is the branch of government with perhaps the most direct impact on our social and political lives.
But for an important First Amendment case, Our Lady of Guadalupe School v. Morrissey-Berru, these Title VII decisions would have ominous implications for the Church and other religious organizations in their hiring, promoting, and firing policies under a variety of anti-discrimination laws. In Our Lady of Guadalupe School v. Morrissey-Berru, a teacher was fired on the basis of her teaching performance. She sued the school, arguing that she was actually fired because of her age, and thus alleged discrimination under federal law. The school moved to dismiss the action because the employee was a “minister” under Supreme Court precedent, and thus the school was immune from the lawsuit. Deciding in favor of the school, the Court reaffirmed a “ministerial exception” to some discrimination laws.
In the 2012 case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC a unanimous Court held that the “the Establishment Clause [of the First Amendment] prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” Writing for a 7 to 2 majority in Our Lady of Guadalupe, Justice Samuel Alito reaffirmed this principle, arguing that churches, schools, and other religious institutions have broad protection in determining who they may hire and fire as ministers under the First Amendment, regardless of other laws that might infringe upon that latitude.
When the stakes are as large as the Title VII cases, such reasoning is not merely dangerous, it is pernicious.
Because the ministerial exception cases inherently conflict with the Title VII cases, we can be sure that subsequent Supreme Court terms will consider other disputes that test the limits of both lines of decisions.
In a third 2020 case, Espinoza v. Montana Department of Revenue, the Court struck a blow against state laws and constitutional provisions that mandate discrimination against churches and religious schools in the distribution of public funds. Like about 35 other states, Montana had a law that barred the use of otherwise generally available public funds for programs affiliated with religious organizations. In other words, tax revenue could be collected from participants in such organizations, but such participants could not benefit from the distribution of that revenue, solely because the organization had a religious mission. Writing for a 5 to 4 majority, Chief Justice John Roberts explained that the Montana law violates the First Amendment because it “bars religious schools from public benefits solely because of the religious character of the schools” and “also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”
More disputes will be brought under all of these cases, further defining (and perhaps muddling) the scope of religious exercise and the definition of various forms of discrimination. As such, the Supreme Court of the United States is the branch of government with perhaps the most direct impact on our social and political lives. “Next to nothing,” indeed.
Kenneth Craycraft is an attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, in Cincinnati.
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