Law & Courts

Some Takeaways for Educators in Supreme Court Rulings on Obamacare, Religious Liberties

By Mark Walsh — June 17, 2021 6 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
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The U.S. Supreme Court on Thursday issued decisions in two cases that educators were keeping tabs on—one involving a battle between religious rights and anti-discrimination policies and the other over the Affordable Care Act.

The court ruled that the city of Philadelphia violated the First Amendment free-exercise-of-religion rights of a Catholic social services agency by refusing to refer children for foster care placements due to the agency’s refusal to screen same-sex couples.

The case, Fulton v. City of Philadelphia (No. 19-123), had been watched for its potential impact on larger questions about the assertion of religious rights to seek exemptions from anti-discrimination laws that cover sexual orientation. Among them: how such principles will play out when private religious schools seek to partake in government programs such as vouchers but keep rules barring LGBTQ students or faculty members.

But while the court was unanimous in ruling for the Catholic agency, the majority ruling signed by six justices took a narrow approach that leaves those larger questions for another day.

Meanwhile, in California v. Texas (No. 19-840), the court ruled 7-2 that a group of individuals and Republican-led states lacked legal standing to challenge the Affordable Care Act after Congress in 2017 eliminated the penalty for not complying with the law’s individual mandate to carry insurance.

Educator groups weighed in on health-care case

Both the American Federation of Teachers and the National Education Association had joined a friend-of-the-court brief supporting the landmark law, which was enacted in 2010 under President Barack Obama and survived two other major challenges in the Supreme Court. The brief the unions signed emphasized the expanded number of children and young adults covered by health insurance because of provisions in the ACA.

“Today’s decision by the court sends yet another clear message that there is no appetite—legal or otherwise—to dismantle health insurance on which more than 21 million Americans depend,” NEA President Becky Pringle said in a statement Thursday.

In this latest challenge, a federal district court held that the entire law was unconstitutional because the individual mandate was no longer sustainable under the tax-power theory that the Supreme Court had relied on in its landmark 2012 decision upholding most of the ACA. A federal appeals court struck down the individual mandate, but said the district court should examine whether that provision could be severed without invalidating the entire law.

Writing for the majority in the Supreme Court, Justice Stephen G. Breyer said the case should not have been allowed to proceed because the challengers failed to show any “concrete, particularized injury” that can be traced to the elimination of the individual mandate.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Amy Coney Barrett.

Thomas, in a concurrence, said he continued to believe the ACA was unconstitutional, but “the individual plaintiffs allege only harm caused by the bare existence of an unlawful statute that does not impose any obligations or consequences. That is not enough.”

Justice Samuel A. Alito Jr., in a dissent joined by Justice Neil M. Gorsuch, said the majority had yet again “pulled off an improbable rescue” of the health care law.

“Instead of defending the constitutionality of the individual mandate, the court simply ducks the issue and holds that none of the act’s challengers, including the 18 states that think the act saddles them with huge financial costs, is entitled to sue,” Alito said.

In Philadelphia foster care case, the majority adopts a narrow approach

The foster care case involved Catholic Social Services, an agency of the Roman Catholic Archdiocese of Philadelphia. It challenged its exclusion from the city’s foster-care system after the city learned in 2018 about its policy of not certifying same-sex couples to become foster parents, which violated a city anti-discrimination law that covers sexual orientation.

CSS said it had never been approached by a same-sex couple, and if it had, it would have referred the couple to one of some 30 other foster-care agencies in the city, including a few that focus on the LGBTQ community. The agency said its exclusion violated its First Amendment free speech and free exercise rights.

A federal appeals court ruled that the city was applying a neutral and generally applicable policy and thus upheld it under the Supreme Court’s 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith. In that case, the high court cast aside a long-prevalent “strict scrutiny” test for evaluating government action that infringed the free exercise of religion guaranteed under the First Amendment.

The Supreme Court had asked the parties to address whether Smith should be overruled. But in his majority opinion, Chief Justice Roberts said the city’s non-discrimination requirement in its foster-care contract was not generally applicable because it gave room for a city official to grant exceptions.

“This case falls outside Smith because the city has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable,” Roberts said.

Furthermore, foster care placements do not fit neatly into the definition of “public accommodations” covered by the anti-discrimination law, Roberts said.

“Certification as a foster parent … is not readily accessible to the public,” Roberts said. “It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

The chief justice said the city’s interest in the equal treatment of prospective foster parents and foster children was “a weighty one,” but on the facts of this case “this interest cannot justify denying CSS an exception for its religious exercise.”

Robert’s opinion was joined by Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. Barrett, in a concurrence joined by Kavanaugh and in most part by Breyer, said there was no need to consider overruling Smith in this case.

Alito, in a 77-page opinion concurring in the outcome that was joined by Thomas and Gorsuch, said the court should have used the case to overrule Smith.

He said the majority opinion was based on a “superfluous (and likely to be short-lived)” feature of Philadelphia’s contract that allows for exceptions, which the city could easily eliminate and put the parties at odds once again.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito said. “After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

Alito cited a number of K-12 school cases to help illustrate his long catalogue of reasons about why Smith has been problematic. For example, he said the recent spate of cases involving COVID-19 closure rules pointed up that courts have sometimes used improper comparators for deciding whether a restriction was neutral and generally applicable. He cited a case last year in which a federal appeals court upheld Kentucky’s rules for school closures against a challenge by a religious school.

When that school sought emergency relief in the Supreme Court in December, the court refused, but Alito joined a dissent by Gorsuch that said that Kentucky’s closure order covering religious and secular schools may have discriminated against religion because the lower court had failed to compare it with a separate order governing the closure of businesses.

Gorsuch issued his own opinion concurring in the judgment, signed by Thomas and Alito, that said that only the high court can fix the errors of Smith.

“Dodging the question today guarantees that it recurs tomorrow,” Gorsuch said. “These cases will keep coming until the court musters the fortitude to supply an answer.”


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