Religious Exemptions

RELIGIOUS EXEMPTIONS

EDITED BY ALEXANDRA BROWN, ALEXANDRA HIMONAS, SAVANNA JONES,

KALLI JOSLIN, CARTER MAN, AND CASEY MCCLAREN

I. INTRODUCTION ......................................... 335

II. DEVELOPMENT OF RELIGIOUS EXEMPTIONS...................... 336

A. HISTORY OF THE COMPELLING INTEREST TEST ............... 336

B. ROBERTS V. UNITED STATES JAYCEES ..................... 337

C. HURLEY V. IRISH-AMERICA GAY, LESBIAN, AND BISEXUAL GROUP

OF BOSTON ....................................... 338

D. BOY SCOUTS OF AMERICA V. DALE ...................... 338

E. CHRISTIAN LEGAL SOCIETY V. MARTINEZ .................. 340

F. FULTON V. CITY OF PHILADELPHIA ....................... 341

III. THE MINISTERIAL EXCEPTION .............................. 343

A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL

V. EEOC ........................................ 344

B. EEOC V. R.G. & G.R. HARRIS FUNERAL HOMES, INC.. . . . . . . 346

C. OUR LADY OF GUADALUPE SCHOOL V. MORRISEY-BERRU . . . . . . . 347

IV. PRIVATE BUSINESSES’ RELIGION-BASED COMPLAINTS AGAINST STATE

AND FEDERAL STATUTES .................................. 348

A. BURWELL V. HOBBY LOBBY STORES, INC................... 349

B. MASTERPIECE CAKESHOP LTD. V. COLORADO CIVIL RIGHTS

COMMISSION ...................................... 351

V. RELIGIOUS EXEMPTIONS TO PROVIDING HEALTHCARE .............. 356

A. THE CHURCH, COATS-SNOWE, AND WELDON AMENDMENTS . . . . . 358

1. Trump Era Religious Exemption Regulation: Protecting

Statutory Conscience Rights in Healthcare . . . . . . . . . . . 359

2. Minton v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . . . 361

3. Chamorro v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . 362

B. REFUSALS TO FILL PRESCRIPTIONS ....................... 363

VI. RELIGIOUS EXEMPTIONS TO PROVIDING HOUSING . . . . . . . . . . . . . . . . . 365

VII. CONCLUSION .......................................... 367

I. INTRODUCTION

The First Amendment protects the free exercise of religion, so when religious

beliefs conflict with laws prohibiting discrimination based on sex or sexual orien-

tation, courts must balance freedom of religion, association, and speech, with the

state’s interest in a more equal society. Organizations are sometimes exempted

from anti-discrimination laws on religious grounds, allowing them to fire,

335

exclude, or deny services to women or members of the LGBT community. In

1993, Congress responded to the Supreme Court’s refusal to strike down a law

prohibiting the use of Peyote, even for religious purposes, by passing the

Religious Freedom Restoration Act (RFRA).

1

RFRA created a two-prong balanc-

ing test: the government must not substantially burden a person’s exercise of reli-

gion unless 1) in furtherance of a compelling government interest and 2) it uses

the least restrictive means of furthering that interest.

2

RFRA does not discuss the

ministerial exception, which remains good law, and has been expanded by a 2020

decision in Our Lady of Guadalupe School v. Morrisey-Berru.

3

The exception

“precludes application of such legislation to claims concerning the employment

relationship between a religious institution and its ministers.”

4

Part II of this article traces the development of religious exemptions through

four major cases involving public accommodations laws. Part III reviews the

ministerial exception. Part IV explores cases involving private businesses and

religions exemptions. Part V and VI discusses religious exemptions to providing

healthcare and housing, respectively. Finally, Part VII concludes.

II. DEVELOPMENT OF RELIGIOUS EXEMPTIONS

This section overviews A) the history of the compelling interest test, and sev-

eral relevant cases including B) Roberts v. United States Jaycees, C) Hurley v.

Irish-American Gay, Lesbian, and Bisexual Group of Boston, D) Boy Scouts of

America v. Dale, E) Christian Legal Society v. Martinez, and F) Fulton v. City of

Philadelphia.

A. HISTORY OF THE COMPELLING INTEREST TEST

RFRA explicitly seeks to restore the compelling interest test “as set forth in

prior Federal court rulings” as “a workable test for striking sensible balances

between religious liberty and competing prior governmental interests.”

5

The test

was established in three key cases alleging that anti-discrimination laws violated

the right to free speech and/or association: Hurley v. Irish-American Gay,

Lesbian, and Bisexual Group of Boston;

6

Roberts v. United States Jaycees;

7

and

Boy Scouts of America v. Dale.

8

Both Jaycees and Boy Scouts of America grapple

with how the nature and purpose of an association affects the extent to which it

warrants protection. Post-RFRA, the Court has maintained carve-outs like

1. “The Supreme Court virtually eliminated the requirement that the government justify burdens on

religious exercise imposed by laws neutral toward religion.” Religious Freedom Restoration Act of

1993, 42 U.S.C. § 2000bb (1994).

2. Id.

3. Our Lady of Guadalupe Sch. v. Morrisey-Berru, 140 S. Ct. 2049 (2020).

4. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012).

5. 42 U.S.C. § 2000bb.

6. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995).

7. Roberts v. United States Jaycees, 468 U.S. 609 (1984).

8. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

336 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:335

reduced scrutiny for “limited public forum.” In Christian Legal Society v.

Martinez, the Court acknowledged the close relationship between association and

speech, ruling that college clubs are limited forums subject to reasonable restric-

tions on speech, which includes club membership requirements.

9

B. ROBERTS V. UNITED STATES JAYCEES

Although Roberts v. United States Jaycees does not involve religious liberty

claims directly, this case represents the Supreme Court’s handling of challenges

to public accommodation laws. In 1984 the United States Jaycees, a nonprofit

group for training and networking for young men, challenged the constitutionality

of the Minnesota Human Rights Act (HRA) prohibiting discrimination on the ba-

sis of sex. The group allowed women to be “associate members” only, reserving

voting power and leadership positions for young men. It argued that its discrimi-

natory membership requirements were protected by the First Amendment.

Ultimately, the Court conceded that Minnesota’s regulation of the Jaycees’

activities implicated First Amendment expressive rights but found that the inter-

ference was justified because 1) it served a compelling state interest and 2) it

could not be achieved through less restrictive means.

10

The Court rejected the

argument that Jaycees received the heightened protection afforded to intimate

associations, reserving an intimate association analysis for cases involving mar-

riage, child rearing, cohabitation, and other situations of a similarly personal

character.

11

The Court also reasoned that the Jaycees did not have distinctive

characteristics that safeguarded highly personal relationships from state regula-

tions like Minnesota’s HRA, due to its few membership requirements and inclu-

sion of nonmembers of both genders in activities.

12

In ruling against the Jaycees,

the Court reinforced the state’s interest in combating gender discrimination and

laid the foundation for the modern freedom of association test.

Interestingly, the court also found that the anti-discrimination law was “unre-

lated to the suppression of ideas” and that the admission of women as voting

members would not “impede the organization’s ability to disseminate its pre-

ferred views.”

13

The Jaycees, an explicitly Christian organization, apparently did

not argue, or did not argue convincingly, that the subordinate status of women

was the idea being suppressed, and that it was both a religious belief and a “pre-

ferred view” of the organization. The Court’s characterization of the Jaycees con-

trasts sharply with its characterization of The Boy Scouts of America in Boy

9. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561

U.S. 661, 701 (2010).

10. Roberts, 468 U.S. at 609.

11. See id. at 618-21 (noting that family relationships, an example of intimate association, “are

distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin

and maintain the association, and seclusion from others in critical aspects of the relationship,” which the

Jaycees lack).

12. See id. at 620-21.

13. Id. at 627.

2021] RELIGIOUS EXEMPTIONS 337