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Roberts Court invents broad exemptions to civil rights law for religious employers

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As Justice Sotomayor observes:

Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review,  and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protections, I respectfully dissent.

The Court’s holding is particularly remarkable because the suit is at the summary judgment stage, which means that the courts are supposed to be looking at the facts in a light most favorable to the plaintiff. At any rate, by indicating that it will give uncritical deference to the declarations of who counts as a “ministers” the Court has taken away civil rights protections away from many employees who do not consider themselves “ministers” because they very obviously aren’t. Kagan and Breyer joined the majority opinion — sure, it didn’t seem to have moderated the majority opinion (which went much further than Hosanna-Tabor), and it won’t get them anything in any future case, but trust me it must be Savvy because something.

The Court also ruled today that the Trump administration’s broad exemptions to the contraceptive mandate in the ACA could stand. On its face, this isn’t as damaging because these exemptions are very likely to be gone at this time next year. Except that Thomas’s opinion teed up a challenge to the mandate on nondelegation grounds, so the ACA’s preventative care requirements could be one of the first victims of the Court reviving a doctrine that has been applied to one statute for a five month period 85 years ago and never before or since because it’s transparently unworkable. Whee!

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