Every Supreme Court decision tells a story, its author attempting to marshal the facts and the law in such a way as to make the conclusion appear not only obvious but inevitable. A divided decision will tell two or more competing stories, which is why I usually read dissenting opinions first. That way, by the time I get around to the majority opinion, I’m aware of the alternative narrative path that could have led the court to a different destination.
Often there’s nothing particularly subtle about this. Take the case the court heard last week on whether three committees of the House of Representatives are entitled to see President Trump’s personal and business-related financial records.
What’s the story of this high-octane dispute? Partisan-driven legislative overreach that threatens to weaken the presidency? Or unjustified stonewalling that will impair Congress in its oversight role?
Other times, it takes more work to unearth the competing story lines. That’s particularly true in religion cases, because we’re not inclined to frame these disputes as stark dichotomies. Rather, we start from the shared premise, embodied in the Constitution’s Free Exercise Clause, that the state should give religious believers room to practice their faith without undue interference. Rather than either-or, the question often becomes how much room, under what circumstances.
The court heard two cases dealing with religion during its recent weeks of telephonic argument sessions, and on the surface both display this quality of shared premise. You might call it the “of course” principle: Of course nuns shouldn’t be expected to subsidize birth control for their nonprofit institution’s employees. Of course a religious school should be free to hire and fire teachers whose job it is to impart to young students the core meaning of the faith.
Could Hollywood have come up with a better name to carry the flag against government-sponsored birth control than Little Sisters of the Poor? The sisters are members of a Catholic order that runs nursing homes for the elderly poor. It is one of more than a dozen religious entities that have been in federal court in the past five years in the interminable struggle over the contraception mandate of the Affordable Care Act. Its name is the one that has resonated, even as its stake in the outcome of this dispute has reached the vanishing point.
That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.
In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.
The federal appeals court in Philadelphia granted a Little Sisters affiliate in Pittsburgh the right to intervene in the states’ case in defense of the Trump rule. After the appeals court enjoined both the religious and the “moral” exemptions, the Little Sisters beat the administration to the Supreme Court by two days with an appeal; its lower docket number (19-431 compared with 19-454 for the administration’s appeal) meant that the Little Sisters’ name would carry the case.
And what of the dispute itself? The legal issue is whether the Trump administration jumped through the right hoops of the Administrative Procedure Act when it issued the rules containing the two exemptions. But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré, a professor at the Antonin Scalia School of Law at George Mason University, the day before the May 6 argument. The subheadline asked: “Why does the left insist on making nuns pay for birth control?” And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”
Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)
In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.
Usually during a Supreme Court argument the names of the parties are scarcely mentioned; lawyers and justices alike typically refer to “petitioner” and “respondent.” When I first started following Supreme Court arguments, this practice struck me as odd, but it came to sound natural. After all, a Supreme Court case usually isn’t really about the particular individual or the particular organization before the court. It’s about all the individuals and all the organizations, of which the parties at hand serve as an almost random representation, that will be affected by the decision, now and in the future.
So it was striking to hear Paul Clement, the Little Sisters’ lawyer, refer during the argument to his client by name, again and again, and then again — a total of 13 times, by my count in the transcript.
Mr. Clement is perhaps the most accomplished Supreme Court advocate of his generation. He didn’t just happen to mention his client’s name 13 times. He was telling a story, not only to an unseen audience of nine but to a nationwide audience of people who were hearing a Supreme Court argument for the first time in their lives.
The court’s second religion case of the month also provided a canvas for storytelling. The subject was the “ministerial exception,” a judicially created doctrine, first endorsed by the Supreme Court eight years ago, that exempts churches from having to follow federal employment laws when it comes to selecting or retaining … who? That’s the question, one that the court’s sole precedent on the subject didn’t answer: How far down the chain from actual clergy does the doctrine reach?
Two Catholic schools in California each dismissed a fifth-grade teacher; each of the women taught the full curriculum of fifth-grade subjects, including a religion class, which they taught from a prescribed workbook. One of the women was fired after she told the school that she had breast cancer and would need some time off for treatment and recovery. (She has since died of the disease.) She sued the school under the Americans With Disabilities Act. The other woman sued under the Age Discrimination in Employment Act after her contract was terminated when she failed to take the principal’s hint that she should retire.
Both schools claimed that the teachers served functions sufficiently central to their mission for the ministerial exception to apply, making the federal anti-discrimination laws irrelevant. A federal appeals disagreed. During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?
I described the case in more detail in a recent column. My point here is to highlight the competing stories that emerged from the argument. The Becket Fund for Religious Liberty, representing the schools, broadcast its position in a news release on the morning of the argument: “TODAY: Supreme Court to hear historic telephonic argument over religious schools’ right to select religion teachers.” Is a teacher who teaches religion for two hours a week, slotted into days filled with math, social studies, English and everything else, properly called a “religion teacher”?
According to the schools’ argument, the answer has to be yes if the school thinks so. “If separation of church and state means anything at all,” Eric Rossbach, representing the schools, told the court, “it must mean the government cannot interfere with the church’s decisions about who is authorized to teach its religion.”
Jeffrey Fisher, representing the teachers, said the schools were seeking a “sea change” from what had long been a more restricted understanding of the ministerial exception, “that lay teachers who teach some religion are on one side of the scale, and other people who are core spiritual leaders in seminary schools and the like are on the other side of the scale.” The result of accepting the schools’ argument, he continued, would be to “basically have employment-law-free zones in all religious schools.”
The two cases I’ve discussed here are linked by context rather than by legal doctrine: The contraception case is an administrative procedure case that in its current phase leaves the Constitution to one side. But they both have something deep in common that transcends doctrinal specifics and that puts the Supreme Court to a profound choice. At issue is the nature of civil society itself. The notion that an employer can simply opt out of a legal obligation it finds objectionable on undefined “moral” grounds, or on the basis of an evanescent “complicity” with the distant choices of other actors, threatens the assumption that we all live by the same rules. That thousands of Americans who accept jobs with religious employers might have to forfeit their statutory protections against discrimination — there are an estimated 150,000 lay teachers in religious schools — cuts a hole in a legal fabric designed to protect everyone.
The belief that “we’re all in this society together” is fraying rapidly enough without the Supreme Court’s help. But it remains an aspiration worth clinging to, a story worth telling. It is, indeed, the real story of the cases the justices heard on the telephone in the midst of the crisis of our lives — all of our lives.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Source: NY times