SCOTUS indecision in Zubik case leaves much clarification desired on the law and religious freedom

Advocates for religious rights hoped the Supreme Court’s decision in Zubik v. Burwell, the Affordable Care Act’s contraceptive mandate case, would determine the scope of protection afforded by the Religious Freedom Restoration Act. Instead, the court remanded Zubik and its companion cases to allow the litigants to resolve their disputes in a manner that provides contraceptive coverage without invoking religious objection. The court’s promotion of self-help conciliation may be an exercise of Solomonic wisdom or merely an effort to avoid a 4-to-4 split that would have left conflicting lower court decisions in place. The expected pronouncement of a standard for determining the substantial burden requirement of R.F.R.A. would have given clarity to the law’s reach.


R.F.R.A. prohibits the federal government from substantially burdening a person’s exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. R.F.R.A. has been asserted creatively, and with varying results, to transfer assets from bankrupt dioceses, protect tithes given by bankrupt congregants to their churches and shield “fictitious profits” generated by Bernard Madoff’s Ponzi scheme. The application of R.F.R.A. to every federal law guarantees numerous opportunities for the court to revisit its breadth, with a likely scenario being a challenge to federal anti-discrimination law enforcement.

Employment Discrimination. Title VII prohibits discrimination and harassment in the workplace but exempts religious employers from religious discrimination claims. The Supreme Court has not determined the extent of this exemption, and the lower courts are not in agreement on a proper test to determine which employers are “religious.” Some courts apply a laundry list of factors, including whether the entity operates for a profit, produces a secular product or is affiliated with a formal religious entity. Others rely on a “general picture” of an organization as “primarily religious” or “primarily secular.”

R.F.R.A. challenges brought by nonexempt employers involve the clash of two sets of religious rights: the right of employers to use their businesses to promote their religious beliefs and the right of employees to be free from hostile workplaces and religion-based employment decisions. Each case requires a careful factual analysis, and the law encourages “mutual accommodation” of conflicting religious practices.

Nevertheless, the government has a strong interest in preventing religious discrimination. Thus, even ardent believers whose religious exercise is substantially burdened by Title VII must yield to the extent necessary to protect employee rights. In one case, a nonexempt home health care company with a fundamentalist mission was found liable under Title VII when the owner refused to hire an otherwise qualified Unitarian, ridiculed her Catholic employees’ faith and forced participation in “born again” prayer.

Except with regard to ministers, even religious employers are not exempt from laws that prohibit discrimination on the basis of age, disability or sex. Judicial acceptance of the Justice Department’s interpretation of “sex” to include transgender identity may lead religious employers to assert R.F.R.A. defenses. As one federal trial court recently stated, “though most of the earliest cases held that Title VII does not protect gender identity, the weight of authority has begun to shift the other way.”

Discrimination in Education. Title IX prohibits sex-based discrimination in education. Religious schools are exempt when application of the law “would not be consistent with the religious tenets of such organization.” This exemption is quite narrow and is rarely invoked with success. Nevertheless, at least one Catholic school has alleged that enforcement of Title IX against it would violate R.F.R.A. by substantially burdening the school’s religious rights. A lower court rejected the argument, but the case is still ongoing and that decision may be appealed.

As with employment discrimination, the application of Title IX to transgender students could yield a plethora of R.F.R.A. lawsuits. The federal circuit court that has jurisdiction over North Carolina has determined that the U.S. Department of Education’s interpretation of the law “as it relates to restroom access by transgender individuals” is controlling. Until the Supreme Court “decides to decide,” the lower courts and litigants must do their best to apply R.F.R.A. as Congress intended.

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