Little Sisters 2: Vacated and Remanded

The Supreme Court has released two more religious liberty rulings into the world. Our Lady ...

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The Supreme Court has released two more religious liberty rulings into the world. Our Lady of Guadalupe School v. Morrissey Berru ended up being a blow to employment discrimination laws in favor of First Amendment religious liberty concerns. In Little Sisters of the Poor, the Court upheld a regulation allowing employers with religious objections to ignore the Affordable Care Act’s birth control mandate.

David and Sarah take a closer look at both cases, and on the battle between religious liberty and gay rights, David shares his theory on the emerging pattern from the Supreme Court.

Show Notes:

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  1. Avatar photo
    Ann-Marie Inglis

    Hi David and Sarah,
    I am a regular listener to advisory opinions, so congratulations to both of you on an educational, interesting and well-made podcast. It’s my go-to to help me understand the court opinions as you are both well versed in law and great at explaining the decisions in reference to history of the logic of previous decisions / laws. I also love the dispatch and the Bulwalk (no competition here, you are both great)

    But I wanted to take issue with you on the decision in little sisters of the poor and the further narrowing of women’s access to birth control. It’s not that I disagree that religious entities should be able to exercise choice about what benefits the organization offers their employees. Employees can and will make an educated choice about their relationship with their employer. But health care should not be something that employer’s control at all.

    I just don’t believe we should even be in a position where this is litigated! Why don’t you step back and look at this in the context of human right to access rather than through the prism of what a religious employer can foist on their poor staff. If health insurance was NOT an employment benefit, we wouldn’t even be having this argument (or spending vast amounts of money on lawyers arguing it). In no other country in the world would my access to covered / subsidized birth control be something my employer could make a choice about. It is between me and the health provider, a direct one on one relationship in which I decide (within the framework of that country) what services I need. Why is a third party even involved?

    What is really sad here is that for these organizations who prioritize their values and inflict their decisions on their employees, they limit the talent that could potentially work for them, again why should I even have to go down the path of looking at what’s denied me before I choose to work for a company.

    I guess you can tell I’m not an American, though I have had the pleasure of living in Texas for the last 6 years. Oh, how I hate the health care system in the US and I would give anything to have my single payer “socialized” health care back.

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  2. DRHanson

    This is a minor point, but I want to respond to Sarah’s comment that the 1st Amendment “is first for a reason.” This isn’t the first time that David or Sarah has made an offhand comment about the 1st Amendment being listed first for some special reason, without spelling out that reason. I assume David and Sarah know the real reason it is listed first and are just using verbal irony as a gentle poke at those who assume it was listed first because it was considered the most important of the first 10 amendments. For the benefit of such listeners, it might be interesting to take a few minutes in a future podcast to explain that the order of the first 10 amendments has nothing to do with their perceived importance at the time they were drafted. For one thing, what we call the 1st Amendment was actually intended to the 3rd Amendment, but the first two on the list weren’t ratified. And the reason the 1st Amendment is listed 1st among the 10 that did pass is that Madison intended them to be inserted into the sections of the Constitution that they modified, just like statutory changes are inserted into the body of existing legal codes. The original 1st amendment (dealing with the size of the House) was supposed to go into Article I, Section 2. The original 2nd Amendment (congressional salaries) was to go into Article 1, Section 6. What we call the 1st Amendment was originally listed 3rd because it was to be inserted in Article I, Section 8. The 2nd and 3rd amendments modified Article I, Section 9, and so on. But during the legislative process Roger Sherman of Connecticut argued the amendments should be listed at the end so that people could always see the original text as it was originally approved. He won the argument and they were pulled out of the body of the Constitution and listed at the end in the order that they would have appeared in the Constitution under Madison’s plan.

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  3. Avatar photo
    Rev Snow

    "The First Amendment is the First Amendment for a reason."

    The reason being that the first two of twelve articles of amendment submitted to the states by Congress were not ratified in a short period of time. That's why the **third** article of amendment passed by the First Congress became what we today call the First Amendment.

    Peeve of mine, falsely taking the order of ratification as a marker of priority of importance. I expect better from Advisory Opinions.

    The second article of amendment took a very long time to get ratified to become the 27th Amendment in 1992.

    The first article of amendment, on representation ratios in the House -- clearly the most important issue of all -- is still awaiting ratification. Expand the House!

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    Tracie

    Enjoyed the speculation about Kagan's inner life. Didn't have a strong sense of her, or know much of anything about her history.

    Also learned about the precariousness of allowing federal agencies to make decisions about cultural touchstones - like whether religious organizations should fund/provide reproductive services they don't agree with.

    One of many reasons it's *nuts* that employers are involved in providing our health insurance. Looking forward to any cases that address that.

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    Jake

    Don't non-discrimination laws by definition infringe upon freedom of association? I know it's not technically in the Bill of Rights, and trying to revive the 9th amendment is probably a lost cause at this point. But I do not have the right to anyone's labor, or to work in anybody's business, nor would I want to if they hold bigoted beliefs against me.

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    Victor Clairmont

    So I think we have a long term problem.

    It is actually noble, if this grand strategy rests on the Supreme Court trying to broker an armistice between religious liberty and gay rights. I think it is a good move.

    However, the problem fundamentally lies with the culture war raging in the streets, so to speak. If the LGBT lobby, as well as the religious organizations continue to sue and do battle without saying “Lets let bygones be bygones”, no matter what the Supreme Court does, it stalls an inevitable showdown into the future between religious liberty and civil liberties (in discrimination on gay rights etc.). Also, the American public has to be willing to let this go too. There is no culture war without a public. And congress running away from responsibilities does not help. You cannot continue to build high towers and walls or perhaps an opposing one lane highway with the trucks of logic inbound to each other. They will crash, and this idea is just making the runway longer till the crash happens.

    Next is the problem that some, including me have observed and is rightly pointed out in this podcast: who on earth decides who is a ministerial exception? Especially with something g as personal as religion is? After all, one can be highly religious and not join an organized church/synagogue/mosque. In fact, many times people over a long period of years (a journey of faith) will find themselves in a particular religion, but should they not be exempted in their journey of faith for what the sincerely believes now?

    Finally, this culture war is long from over, but it is good too see that perhaps the Supreme Court has a legal working plan in progress for an armistice. However, let us also be skeptical: some of the most terrible problems in America in the culture war has come because of unelected judges (or unintended federal policy) exasperating the issue than letting the public decide via vote/congress etc. As has been pointed out by David (and others), let’s not out our faith in the Supreme Court to settle issues. Let’s put it in We the People to get active, debate In good faith, and be ready to fill the void left behind after the ashes of the 2020 election.

    Clear thinkers and wise people will be needed more than ever soon. Which is why I, and more than likely you reading this, have subscribed to The Dispatch.

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    1. Avatar photo
      Aylene Wright

      Retired Senator Hatch has written and spoke about this issue in some depth. He certainly has an interesting perspective as a member of the LDS church.

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        Victor Clairmont

        Oh I would be curious to look this up then.

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  7. Tristan Martin

    Thanks for putting this out so quickly! "The people were demanding it!" Honestly, it is so helpful to hear these opinions analyzed as they come out. And as an added bonus, it was released before my run last night. Keep up the great work!

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  8. Alan

    A bit of (hopefully) constructive feedback... As a non-lawyer, for whom this is my sole source of supreme court news, I love the deep technical analysis. But sometimes it goes by too fast. For example, it felt like we dove right into the concurrences and dissents without saying what the actual decision was. Similarly, the summary of the history of Little Sisters left me not actually understanding which part was being decided this time around (the exemption or the accomodation). Another problem is getting a deluge of jargon at once. Even when the jargon has been explained in a previous episode, I sometimes forget. It'd be great if there were short-hands ala the Economist (e.g. every time they write OECD they say "a club of rich countries.") Every time you say severability you could say "aka the supreme court removing congressional warts". Avoiding covering a large number of cases in one show would also help. Regardless, thank you so much, this has quickly become one of my favorite podcasts so please keep up the good work!

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    1. Luke Thompson

      While they do a lot of the heavy lifting, I would definitely recommend going to supremecourt.gov and reading the first part (synopsis) of the opinions. The Court Reporter writes those as a summary of the issues and what the majority decided. If you're coming in a day after the case was released, scotusblog.com has excellent summaries (generally by Amy Howe if they're significant, but excellent regardless). As a nominal insider, scotusblog is where actual Supreme Court followers hang out on decision days. I'm sure Sarah and David have the Supreme Court opinion page open as well, but I'd be very surprised if the scotusblog live feed weren't in a tab. They'll have a quick and dirty summation up within five minutes of the opinion being released.

      Both the synopsis and the scotusblog summary are designed to be fairly easy to understand and will give the basics of what's going on. I would definitely recommend at least skimming the synopsis before listening to the podcast. (And, in the spirit of the Dispatch, it gives you a grounding in the primary source before you're hearing from secondary opinions.)

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      Tracie

      Sounds like you're less of a novice than me, but if they dumbed this podcast down for people at my knowledge level, they'd lose all the lawyers and seriou SCOTUS-philes . Jargon is shorthand.

      I see it like reading a medical chart. I'm not going to understand everything, and some of it will always be over my head, but the more I listen the more I understand, and the broad outlines of cases and judicial philosophies and the Constitution itself (the real prize) begins to come into view.

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  9. Tngraham

    On David's "grand theory" of the Supreme Court's recent efforts to balance LGBT protections in secular places with free exercise rights in religious institutions (viz., dividing the world into two non-overlapping domains where one or the other of these sets of rights is supreme), I suspect this is probably right. I also suspect Gorsuch and Kagan are central to this development in the Court's doctrine. David notes that neither advocates for religious liberty nor advocates for LGBT rights are happy about this development, and I think he's right about that. Speaking from the perspective of an advocate for free exercise rights, the end game of this approach seems likely to be the establishment of a religious ghetto, in which to attempt to live according to the dictates of one's religion outside of the walls of the church is to run afoul of the law. Many professions will end up being substantially closed to the religious. Today it's the florists, bakers, and wedding photographers; tomorrow it may be psychologists and doctors who think gender transition is morally wrong.

    Although the idea of establishing areas in which each set of rights is supreme sounds attractive, in theory it is probably only really viable from a First Amendment free exercise if, even in the "secular zone," there is a substantial (but not unlimited) degree of freedom for religious people to express their non-cooperation with a sexual ethic alien to their religions.

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      Tracie

      "...tomorrow it may be psychologists and doctors who think gender transition is morally wrong."

      For those two professions, that seems unlikely.

      Gender re-assignment surgery requires pretty specific skills. I would think a surgeon not comfortable with these issues could simply not learn the procedure. Nobody's going to want an inexperienced surgeon, for that.

      Psychology is a much less precise art. A competent psychologist who disagrees with gender transition, could easily make the case for why it's not appropriate for a given patient. The patient would likely shop around until they found an encouraging psychologist.

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    Grandma B

    If Pennsylvania actually cared about a woman’s “right” to free birth control, they would have taken all the money they spent litigating against The Little Sisters of the Poor for the last 7 years and bought enough pills to fully stock every woman of child bearing age for the length of her reproductive life. In my opinion this litigation, at its heart, wasn’t really about access to contraception, but yet another whack at the 1st Amendment and RFRA. That’s why the Sisters should be prepared for part three: “arbitrary and capricious”.

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      Victor Clairmont

      I am actually sympathetic to your argument. Contraception is so cheap and so prevalent, I don’t know why it’s an issue for 99% of Americans. It’s like saying we don’t have access to drinking water in America, when we do, even if you have to shell out 5 bucks a week for jugs (or 15 for the month for the hugggge gallons one) and you have drinking water. If I can’t scrap up 20 bucks a month for water or contraceptives, I think I would be personally doing something wrong.

      But I don’t want to simplify a problem too much, just thinking out loud.

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        Grandma B

        Most of the mainstream media is discussing this case solely in terms of the Court denying birth control to women. If I lived in Pennsylvania, I’d be really unhappy with my tax money going to persecute a religious order for not providing something the state could provide- if they really wanted to.

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          Victor Clairmont

          Yup, good point.

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