Litigation resumed, and the whole question was left hanging as President Barack Obama left office. The Trump administration promptly replaced the offered accommodation with a complete exemption, expanding the category of eligible employers and extending the exemption to “moral” objectors. (The court upheld the undefined moral opt-out without analysis, as if “religious” and “moral” are synonyms.)
It seems to me that the religion cases represent a triumph for Chief Justice Roberts on a different, deeper level than do the cases that left many liberals cheering at the end of the term. Consider three of the most prominent of those cases: the decisions that brought L.G.B.T.Q. individuals into the category of employees protected against workplace discrimination under Title VII of the Civil Rights Act of 1964; that blocked President Trump from ending the DACA program that enables young undocumented immigrants, the Dreamers, to work legally and protects them from deportation; and that struck down a Louisiana law aimed at driving abortion clinics out of business. Chief Justice Roberts wrote the majority opinions in the last two of those cases and joined Justice Neil Gorsuch’s majority opinion in the first.
While hailing each of those decisions, I think it’s still possible to take a cleareyed look at them and to put each in a category that I call “yes, but.”
Yes, employers now can’t fire someone for being gay or transgender, but we have yet to see the carve-outs that the religious right will demand and to which the court may well accede in subsequent cases. Yes, the president can’t end the DACA program in such a clumsy way, but the decision offers a road map for how to do it better. Yes, the Louisiana law replicated a Texas statute that the court had already rejected, but the Chief Justice Roberts was careful to leave the door open to continued attacks on the right to abortion.
The religion decisions, by contrast, consist of cases that I would call “yes, and.” While the other decisions went no further than necessary to achieve their result, the religion cases went considerably further than they needed to, each one taking and running with one of the court’s recent applicable precedents.
For example, the Montana schools decision built on a three-year-old opinion by Chief Justice Roberts in Trinity Lutheran Church v. Comer, holding that Missouri could not exclude a church-run preschool from eligibility to apply for a state grant to resurface its playground. The church’s exclusion, under a provision of the Missouri Constitution, imposed “a penalty on the free exercise of religion,” the chief justice wrote then. In a footnote, he added that the court was addressing only “express discrimination based on religious identity with respect to playground resurfacing.” It didn’t take long for the no-discrimination doctrine of Trinity Lutheran to migrate to the heartland of church-state controversy in America, public financing of religious education.
The Our Lady of Guadalupe School case, which stripped anti-discrimination protection from elementary teachers at two Catholic schools, also built on an earlier opinion by Chief Justice Roberts in which the court first endorsed a judicial doctrine called the ministerial exception (as in exception from federal civil rights laws.) In the earlier case, Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., the teacher who claimed discrimination, while not an ordained minister, had received extensive religious training and served in what the Lutheran church deemed a “called” capacity.