U.S. Supreme Court Term Ends: The Good and the Bad

The Supreme Court of the United States (SCOTUS) just ended its 2019 term which began last October. This term the Court dealt with five cases that, directly or indirectly, affect family policy, including some high-profile religious liberty and life-related cases. Here is a breakdown:




Catholic Nuns Cannot be Compelled to Provide Condoms or Abortafacients
Contrary to their Beliefs
(Little Sisters of the Poor v. Pennsylvania)


In 2010, the U.S. Congress passed a law which included a provision allowing the Department of Health and Human Services (HHS) to require employers to offer certain medical benefits at no cost to their employees. Subsequently, HHS, then under the Obama administration, created a new rule requiring employers to offer free contraceptives and drugs that could cause abortions, adding only a narrow exemption for churches. Other religious groups challenged the mandate because they objected to providing drugs that were contrary to their religious mission. In 2018, HHS, under the Trump administration, broadened the religious exemption to the contraception mandate so that employers with religious or moral objections need not provide contraception or abortion-causing drugs. Pennsylvania and New Jersey sued, arguing the old rule had to be kept in place. In a 7-2 decision, written by Justice Clarence Thomas, the Court rejected this argument concluding that the federal government was free to ensure that nuns and other religious organizations could “continue in their noble work without violating their sincerely held religious beliefs.”


Religious Schools Can Employ the Teachers They Want
(Our Lady of Guadalupe School v. Morrisey-Berru)


In this case, SCOTUS decided that government cannot interfere in the employment decisions of religious schools regarding their teachers. Two teachers at separate Catholic schools who taught religion along with other subjects and directed the religious activities of students sued the schools when they lost their jobs. The schools responded that the legal principle that the government cannot direct whom religious organizations select to teach the faith (“ministerial exception”) protected their decisions in these cases. The Supreme Court, in a 7-2 decision by Justice Alito, agreed. His opinion concluded: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”


Scholarships Funded Through Tax Credits Can Be Used for Religious Schools
(Espinoza v. Montana Department of Revenue)


In the nineteenth century, an amendment meant to protect Protestant-dominated public schools from competition by Catholic Schools was added to Montana’s Constitution. In 2015, the Montana Legislature created a program that would give a modest tax credit to citizens who donate to a special scholarship fund for parents to use to pay tuition at private schools. Montana’s tax agency said that the parents could not use the money for religious school tuition though they could use it at any secular school. A 5-4 majority of the Court ruled that states cannot single out a parent’s decision for disfavored treatment because it involves religion. Chief Justice John Roberts wrote: “When otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.” This means that a state can only treat religious organizations or people of faith differently if they have a compelling reason to do so (like protecting public health and safety). Since there was no good reason for Montana to treat a parent’s choice to send children to a religious school differently from a parent’s choice to use a secular school, the restriction challenged in this case was found to be unconstitutional.




SCOTUS Strikes Down Louisiana Law Protecting Women’s Health in Abortion Clinics
(June Medical Services v. Russo)


As we reported earlier, a Louisiana law enacted in 2014 required abortion clinic doctors to have admitting privileges at a nearby hospital in case of an emergency during the procedure. Abortion providers challenged the law. In a 5-4 decision, the Supreme Court said the law was unconstitutional. Four of the justices in the majority said the law created a substantial burden on the court-created right to abortion. The Chief Justice joined them because he said that the Court was bound to follow a 2016 Supreme Court decision on a similar Texas law from which he had dissented. In dissent, Justice Clarence Thomas noted the Court had “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” He called Roe v. Wade “grievously wrong” and pointing out that it was “farcical” to believe the 14th Amendment, enacted in 1868, created a right to abortion. In another dissenting opinion, Justice Neil Gorsuch characterized the majority opinion as “a sign we have lost our way.”


SCOTUS Redefines the Word “Sex” to Encompass
“Sexual Orientation” and “Gender Identity”
(Bostock v. Clayton County)


Also as previously reported, this decision involved three employment disputes. In two, employees said they were fired because of “sexual orientation” and in the third, a male funeral business employee claimed discrimination because he was not allowed to dress and identify as a woman at work. The U.S. 1964 Civil Rights Act prohibits discrimination “on the basis of sex,” and the employees said this should be understood to include the new concepts of “sexual orientation” and “gender identity.” The Court decided in a 6-3 vote that the term “sex” also included sexual attractions and the desire to identify as the opposite-sex since that is the “plain meaning” of the word. In dissent, Justice Samuel Alito pointed out: “There is only one word for what the Court has done today: legislation.” He noted that it is obvious that Congress in 1964 did not intend to create new protected categories in civil rights law based on sexual ideologies that were largely or entirely unknown at the time.


The next term of the U.S. Supreme Court begins in October, and there will likely again be rulings issued that will affect the life of the unborn and the family.  As always, Family Watch will help keep you informed about critical issues that affect us all.