Religious Exemptions

• Author: Jacklyn Weon
• Pages: 733-760

RELIGIOUS EXEMPTIONS

EDITED BY JACKLYN WEON

I. INTRODUCTION ......................................... 733

II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS ..................... 734

III. THE MINISTERIAL EXCEPTION .............................. 736

A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL V.

EEOC.......................................... 736

B. EEOC V. R.G. & G.R. HARRIS FUNERAL HOMES, INC. . . . . . . . . 738

C. OUR LADY OF GUADALUPE SCHOOL V. MORRISEY -BERRU ........ 739

IV. PRIVATE BUSINESSES’ RELIGION-BASED COMPLAINTS AGAINST STATE

AND FEDERAL STATUTES .................................. 742

A. BURWELL V. HOBBY LOBBY STORES, INC.. . . . . . . . . . . . . . . . . . . . 742

B. MASTERPIECE CAKESHOP LTD. V. COLORADO CIVIL RIGHTS

COMMISSION....................................... 744

V. RELIGIOUS EXEMPTIONS TO PROVIDING HEALTHCARE .............. 749

A. THE CHURCH, COATS-SNOWE, AND WELDON AMENDMENTS . . . . . 751

1. Trump Era Regulation: Protecting Statutory Conscience

Rights in Healthcare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752

2. Minton v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . . . 754

3. Chamorro v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . 755

B. REFUSALS TO FILL PRESCRIPTIONS ....................... 756

VI. RELIGIOUS EXEMPTIONS TO PROVIDING HOUSING . . . . . . . . . . . . . . . . . 758

VII. CONCLUSION .......................................... 760

I. INTRODUCTION

The First Amendment protects the free exercise of religion; when religious

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

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

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

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

fire, exclude, or deny services to women and 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

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 (West, Westlaw through Pub. L. No. 117–262).

733

religion unless (1) it is in furtherance of a compelling government interest and (2)

it uses the least restrictive possible means of furthering that interest.

2

RFRA does

not discuss the ministerial exception, which “precludes application of such legis-

lation to claims concerning the employment relationship between a religious

institution and its ministers.”

3

The exception was expanded by the 2020 decision

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

4

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

major cases involving public accommodations laws. Part III reviews the ministe-

rial exception. Part IV explores cases involving private businesses and religious

exemptions. Parts V and VI discuss religious exemptions to providing healthcare

and housing, respectively. Finally, Part VII provides a conclusion and forecasts

the future development of the law in this area.

II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS

Fulton v. City of Philadelphia was argued before the Supreme Court on

November 4, 2020.

5

The major petitioner in the case, Catholic Social Services

(CSS), was under contract with the city of Philadelphia to find placements for fos-

ter children.

6

When a reporter called the city’s Department of Human Services to

report that CSS would only place children with opposite-sex couples,

7

the depart-

ment told CSS, based on Philadelphia’s non-discrimination laws, that the city

would no longer refer foster children to CSS. CSS then sued the city under the

First Amendment and Pennsylvania’s Religious Freedom Protection Act,

asking for an order requiring Philadelphia to renew its contract and allowing

CSS to refuse to refer foster children to same-sex families.

8

The district court

denied the request.

9

The Third Circuit affirmed, ruling that Philadelphia’s rule was

constitutional under Employment Division v. Smith, which held that neutral laws

of general applicability may prohibit or compel action contrary to religious belief

without violating the First Amendment.

10

The Supreme Court granted certiorari in

February 2020.

11

Fulton v. City of Philadelphia, OYEZ, https://perma.cc/Y3N2-FMWU (last visited Mar. 4, 2023).

Petitioners argued that Philadelphia violated the First Amendment by limiting

their speech and religious expression. They claimed laws infringing on religious

2. Id.

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

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

5. Fulton v. City of Phila., 922 F.3d 140 (3d Cir. 2019), cert. granted sub nom., 140 S. Ct. 1104 (2020).

6. Sharonell Fulton was a previous foster mother through CSS and was listed as a plaintiff along with

several other foster mothers. Id. at 150.

7. References to gay, straight, or same-sex marriages often ignore the complexities of gender,

sexuality, and partnerships. Referring to “straight couples,” for example, might be a misnomer based on

assumptions that people in an opposite-sex relationship are straight, and not bisexual or gender-

nonconforming. This Article applies terms as used in the cases and briefs while acknowledging this

shortcoming.

8. Fulton, 922 F.3d at 151.

9. Id.

10. Id. at 147.

11.

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