Strong words, but the opinion of the chief judge contained an unusual footnote: “This case concerns explicit discrimination based on religious identity with regard to the resurfacing of playgrounds. We do not deal with religious use of financing or other forms of discrimination. "What did you say? While five other judges signed the chief judge's opinion, two, Clarence Thomas and Neil Gorsuch, disagreed with the footnote, depriving it of majority status. When the Supreme Court ruled, Justice Gorsuch wrote, it does so on the basis of & # 39; general principles & # 39 ;. He added: & # 39; General principles here do not allow discrimination against religious exercises – whether on the playground or not. & # 39;
Chief Justice Roberts knows that as well as Justice Gorsuch. His footnote has all the characteristics that he is designed to gain the consent of Justice Kennedy, whose position in the ideological center of the court for many years demanded a high degree of respect from colleagues who wanted to get or keep his vote. The frequent consequence was that his colleagues limited themselves to opinions that were more limited than they had wished. f In assessing this unlikely case, the new majority of the court hopes to advance the ball.
One of the other new cases that are now competing for court attention is one that is trying to push the boundaries of a different opinion of Chief Justice Roberts. In 2012, the court recognized for the first time a & # 39; ministerial exception & # 39; on laws that prohibit different types of discrimination on the labor market. This allows religious institutions to choose or dismiss their ministers, even if federal laws are violated. The question the court has asked in the Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission is more difficult than it seems. It is clear that no court would acknowledge a Catholic nun's claim to gender discrimination because of the church's refusal to consecrate her as a priest. But what about a parochial teacher? The court upheld the right of a Lutheran church to dismiss a teacher who threatened to prosecute the church for violating the Americans With Disabilities Act. The teacher, Cheryl Perich, was not devoted. But in Lutheran practice she was called & # 39; & # 39; and was deemed qualified to conduct religious services and perform other religious functions in the church school.
The unanimous opinion of the chief judge was cautious, with a long discussion about the training and duties of the teacher. The question quickly arose: what about other teachers, ordinary teachers that no one would regard as quasi-ministers? Did the ministerial exception also protect their church-related employers against claims of discrimination? An appeal filed two weeks ago by a Catholic school in Los Angeles gives the court the opportunity to answer that question. The United States Court of Appeals for the Ninth Circuit noted that a teacher, Agnes Morrissey-Berru, had no specific religious references, education or title, that she had the right to continue her lawsuit against Our Lady of Guadalupe School under federal age discrimination in labor law. The school's petition, stating that "this court has left many of the precise contours of the ministerial exception for a later day", argues that the Ninth Circuit's emphasis on credentials and titles is too rigid and would rob religious groups to define the roles of their employees.
The school is represented by the Becket Fund for Religious Liberty, a very effective law firm for religious rights that commands great respect at the Supreme Court. Becket joined the case after the Ninth Circuit's decision to handle the school's appeal. It also plans to appeal another recent ruling from the Ninth Circuit that refused to grant a ministerial exception to a Catholic school that fired a fifth grade teacher after developing breast cancer and to free time early for treatment. She has filed a complaint under the Americans With Disabilities Act.
The most intriguing new appeal awaiting judgment from the judges is another case from Becket Fund, filed in July. The case, Ricks v. State of Idaho Contractors Board, presents a single simple question: whether the Supreme Court should overturn a 29-year decision, the Employment Division against Smith. That was the case where the court refused to grant a religious exemption to two members of the Native American Church who had been denied unemployment benefit after being fired as counselors for a private drug rehabilitation group for their ritual use of peyote, an illegal hallucinogen. The Free Exercise clause of the First Amendment does not offer religious exceptions to neutral laws of general applicability, the court ruled. The decision led to a two-part, multi-religious upheaval that led to the rapid adoption of the Religious Freedom Act, which requires "compelling justification" to "substantially tax religious exercise," and designed, as the title suggests, to court decision to destroy . The court then ruled that Congress lacked the power to apply this law to the states where Employment Division v. Smith remains the law unless a state has enacted its own Religious Freedom Act.