As the Supreme Court begins a historic May term featuring telephonic arguments, two religion-related cases remain to be heard and one awaits a ruling. This edition of ReligionLink reviews these three cases and offers a list of legal experts who may be willing to take part in your coverage.
Espinoza v. Montana Department of Revenue
Oral arguments: Jan. 22, 2020
Brief case summary: Espinoza v. Montana Department of Revenue centers on a Montana tax credit program designed to increase scholarship access for students at private schools. The program initially included both faith-based and secular institutions, but the Montana Department of Revenue deemed religious schools ineligible due to a state constitutional provision barring public money from supporting sectarian activities.
After the department handed down its decision, a group of parents sued the state, alleging religious discrimination. The parents won at the district court level, but the Montana Supreme Court overturned the decision and ended the entire tax credit program. The families then appealed to the Supreme Court, which heard the case on Jan. 22.
The justices are expected to decide Montana’s constitutional provision banning religious schools from receiving state funds is constitutional. The ruling could hold significant consequences for school voucher debates.
- Listen to “A new Supreme Court case from Montana concerning the ‘Blaine Amendment’” from the “Legal Spirits” podcast on Sept. 3, 2019.
- Read “Should state governments help fund religious schools?” from the Deseret News on Jan. 17, 2020.
- Read “Religious school choice case may yield landmark Supreme Court decision” from The New York Times on Jan. 21, 2020.
- Read “Supreme Court’s conservative justices show support for religious schools in landmark Montana case” from USA Today on Jan. 22, 2020.
- Listen to “Oral argument in the Blaine Amendments case” from the “Legal Spirits” podcast on Feb. 5, 2020.
Michael Bindas is a senior attorney with the Institute for Justice, which is representing the parents suing to reinstate Montana’s tax credit program. He specializes in cases related to educational choice and freedom of speech.
Alice O’Brien serves as general counsel for the National Education Association, which filed a brief opposing tax credit programs that benefit private schools in Espinoza v. Montana Department of Revenue.
Leslie Hiner is the vice president of legal affairs for EdChoice, an organization that researches and advocates for school choice programs. Arrange an interview through Jennifer Wagner.
Holly Hollman is general counsel for and associate executive director of the Baptist Joint Committee for Religious Liberty, where she specializes in church-state issues. She is also an adjunct law professor at Georgetown University. Arrange an interview through Cherilyn Crowe.
Frank Ravitch is chair of law and religion at Michigan State University and a scholar of constitutional religious freedom protections. He is author of several books on the Constitution’s religion clauses, including Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America and Masters of Illusion: The Supreme Court and the Religion Clauses.
Nelson Tebbe is a law professor at Cornell University and specializes in religious freedom, constitutional law and freedom of speech. He co-leads an annual law and religion roundtable for legal scholars.
Little Sisters of the Poor v. Pennsylvania
Oral arguments: May 6, 2020
Brief case summary: Soon after taking office, President Donald Trump attempted to end yearslong legal conflict over the Affordable Care Act’s contraceptive mandate by enabling nearly any privately owned business with a religious or moral objection to birth control to receive an exemption. But rather than resolving lingering conflict, the move sparked new battles.
A handful of state leaders filed lawsuits challenging the Trump administration’s guidelines, arguing that health officials didn’t have the authority to grant such broad exemptions. The case that’s now in front of the Supreme Court, Little Sisters of the Poor v. Pennsylvania, pits Pennsylvania and New Jersey against the Trump team and a familiar group of Catholic nuns, who joined the lawsuit in order to defend the interests of religious nonprofits.
The nuns have already argued against the contraceptive mandate in front of the Supreme Court as part of a 2016 lawsuit focused on Obama-era accommodation rules. The justices also considered birth control coverage in a 2014 case involving Hobby Lobby and other for-profit companies. The businesses successfully argued that religious freedom law guaranteed them the right to access accommodations.
In this third birth control case, the Supreme Court is expected to decide whether the Trump administration obeyed proper procedure and acted within its authority when it created the new exemptions.
- Listen to “The New Little Sisters of the Poor Case” from the “Legal Spirits” podcast on April 2, 2020.
- Read “Supreme Court takes up birth-control conscience case” from NPR on Jan. 17, 2020.
- Read “The Supreme Court will yet again consider which companies must provide birth control” from the Deseret News on Jan. 17, 2020.
- Read “Trump’s changes to contraceptive coverage mandate blocked nationwide” from CNN on Jan. 14, 2019.
- Read “Trump administration issues rules letting some employers deny contraceptive coverage” from The Washington Post on Nov. 7, 2018.
Caroline Mala Corbin is a law professor at the University of Miami who specializes in First Amendment issues, including free speech and religious freedom. She regularly joins amicus briefs on religious issues that are filed with the Supreme Court.
Katherine M. Franke is a law professor at Columbia University, where she also serves as faculty director of the Law, Rights and Religion Project.
Douglas Laycock is a professor of law and religious studies at the University of Virginia and an authority on religious liberty. He is the author of several books and articles on law and religion and co-edited a collection of essays on same-sex marriage and religious freedom.
Josh Shapiro is the attorney general of Pennsylvania. He sued the Trump administration to challenge its plan to offer broad moral and religious exemptions to the Affordable Care Act’s contraceptive mandate.
Kristen Waggoner is senior vice president for the U.S. legal division and communications for the Alliance Defending Freedom, a firm known for defending religious objectors to LGBTQ nondiscrimination laws. She argued Masterpiece Cakeshop v. Colorado Civil Rights Commission before the Supreme Court. Arrange an interview through this media contact form.
Kevin Walsh is a law professor at the University of Richmond. He represented the Little Sisters of the Poor in an earlier challenge to the Affordable Care Act’s contraceptive mandate.
Our Lady of Guadalupe School v. Morrissey-Berru
Oral arguments: May 11, 2020
Brief case summary: The Supreme Court will also return to familiar territory in Our Lady of Guadalupe v. Morrissey-Berru, a case on how to balance employment discrimination law with religious freedom protections that was consolidated with St. James School v. Biel. The justices have been asked to revisit the concept of a “ministerial exception,” which they previously ruled on in a 2012 case called Hosanna-Tabor.
Ministerial exception refers to a religious organization’s ability to be exempted from employment discrimination law in certain situations. It’s meant to ensure faith groups can pick their own ministers free from outside interference.
In the 2012 case and again in the current litigation, the Supreme Court has been asked to decide what types of employees count as ministers under the ministerial exception. Legal experts disagree on whether the category should include only those teachers at religious schools who have received some specialized religious training or any instructor who assists with chapel services and religion lessons.
- Listen to “SCOTUS takes a pair of cases on the ministerial exception” from the “Legal Spirits” podcast on Jan. 23, 2020.
- Read “Supreme Court to rule on exception to work bias laws for religious schools” from The New York Times on Dec. 18, 2019.
- Read “Supreme Court will decide if religious freedom shields Catholic schools from teacher suits” from the Los Angeles Times on Dec. 18, 2019.
- Read “Questions and answers: Religious discrimination in the workplace” from the U.S. Equal Employment Opportunity Commission on July 22, 2008.
Montse Alvarado is a former vice president and executive director of the Becket Fund for Religious Liberty, through which she represented a wide variety of religious ministers, schools, prisoners and hospitals before the Supreme Court. She is now president and COO of Eternal Word Television Network’s news division, EWTN. Contact is Michelle Laque Johnson, director of communications at EWTN Global Catholic Network.
Frederick Gedicks is an expert on law and religion who teaches at Brigham Young University’s J. Reuben Clark Law School. He regularly writes amicus briefs, law review articles and columns on religious freedom cases before the Supreme Court.
Kathy Mears is the interim president and CEO of the National Catholic Educational Association. The NCEA filed a brief in Our Lady of Guadalupe v. Morrissey-Berru arguing that religious schools should have the freedom to hire or fire teachers performing ministerial functions without outside interference.
Melissa Rogers is a nonresident senior fellow in governance studies for Brookings, where she specializes in the First Amendment’s religion clauses and religion and faith-related political issues. She previously served as special assistant to President Barack Obama and executive director of the White House Office of Faith-based and Neighborhood Partnerships.
Robert Tuttle is a research professor of law and religion at George Washington University. He co-authored, along with Ira C. Lupu, Secular Government, Religious People.