What Does the Supreme Court Have to Say About Church Gatherings?
June 11, 2020
Two recent actions by the United States Supreme Court are of significant interest to churches and religious institutions. First, on May 11, 2020, the Court agreed to hear two pending cases regarding the scope of what is known as the “ministerial exception.” This exception has traditionally been used to exclude churches and other religious institutions from coverage under employment discrimination laws based on the constitutional protections of the First Amendment. The second occurred on May 30, 2020, when the Supreme Court denied the request of several churches to have the Court stay the application of the Governor’s “stay at home” orders as they applied to churches. Both are addressed below.
The two pending cases involving the scope of the “ministerial exception” involve teachers at Catholic schools who have alleged they were terminated for discriminatory reasons, i.e., disability discrimination and age discrimination.
The last time the court spoke to the scope and meaning of the “ministerial exception” was a unanimous 2012 decision. But the oral arguments which were heard on May 11 cast some doubt on whether the justices will be united in their ruling on these cases.
Questions from the justices focused on whether interpreting the exception to include teachers in addition to employees who had a “religious leadership role” would sweep too broadly and how the Court might add clarity instead of confusion in its ruling.
Justice Ginsberg questioned whether the exception would apply to those not necessarily in religious leadership roles such as janitors, IT professionals, or coaches. The teachers’ lawyer argued that if the employee had just a minimal religious role, the exception should not apply, and that the teachers were the “primary agents” responsible for teaching the Catholic faith to the students for hours on end. Other justices questioned how the Court would determine whether an employee performs an important religious function, for example art and English teachers as opposed to teachers of religion, and whether that was the sort of entanglement the Constitution sought to prevent. The only uniformity among the justices seemed to be their desire to avoid creating more uncertainty in their ruling. The Court is expected to rule by the end of the summer, and we will be watching closely.
Stay-at-Home Orders (COVID-19 Pandemic)
The second case involved the request of several churches in California and Illinois to be able to hold services on May 31 in spite of the stay at home orders issued in their respective states. At the time of the petition, the relevant stay at home orders limited attendance and set forth other guidelines. The States argued that the churches could hold more services if they wanted to allow more attendees and that in Illinois at least, the restrictions were set to expire on May 29. They argued that what the restrictions would be after that date was purely speculative.
The court’s decision declining to issue the injunctions is noteworthy because in the Illinois case, the decision was issued at 6:30pm, had no public dissents, was brief, and said only that the public health department had issued new guidance on May 28th and the churches were free to return “if circumstances warrant.”
However, in the California case, the Court did not release its opinion until almost midnight and the lines were sharply divided, with Chief Justice Roberts siding with Ginsburg, Breyer, Sotomayor, and Kagan, and writing the Court’s opinion denying the injunctive relief. Justices Thomas, Alito, Gorsuch and Kavanaugh dissented, with Justice Kavanaugh writing a dissent, in which Justices Thomas and Gorsuch joined. The majority opinion found that the restrictions on the places of worship appeared consistent with the First Amendment given that similar restrictions applied to secular gatherings and that other exceptions further limited secular activity.
In denying the injunction request, the majority relied on constitutional precedent stating that “the safety and health of the people” is principally entrusted to “politically accountable officials of the States ‘to guard and protect’” and those officials should be given broad latitude to when they must “act in areas fraught with medical and scientific uncertainties.” The court also indicated that where the State officials did not exceed that broad latitude, they “should not be subjected to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health . . . .” In the dissent, Kavanaugh argued that the secular openings allowed were comparable to the gatherings at houses of worship and that the State had not shown a good reason for treating houses of worship differently. This division in the opinions of the justices likely mirrors the divisions in public opinion regarding restrictions imposed by the States. Further developments in this area of the law can be expected as governmental restrictions and the pandemic continue.
If you have any questions about these topics, please let us know. We at Forrest Firm are keeping a close eye on legal developments in this area of the law and we are happy to provide our guidance and expertise.