September/October 2020 Issue
August 22, 2020

Supreme Court: Big wins, big concerns

Author: Robert Reilly, NYSUT General Counsel
Source: NYSUT United
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The 2020 term of the Supreme Court was busy.

Here we discuss five decisions important to our members.

A trio of decisions addressed religion and the tension between the Constitution’s Free Exercise and Establishment Clauses; all favored the Free Exercise clause.

Espinoza v. Montana Department of Revenue addressed direct state aid to religious schools. The state of Montana enacted a law to provide a tax credit for scholarships made to religious schools. Montana’s highest court found that law to be unconstitutional under the state constitution’s Blaine Amendment, prohibiting, as does New York’s, direct state aid to religious schools. The Supreme Court, however, found that ruling to violate the Free Exercise clause. The decision effectively voided the Blaine Amendment. According to the Court, a state need not subsidize private education, but once it does, it cannot disqualify schools solely because they are religious. With resources for public schools already limited, opponents worry the impact of this decision will further strain those funds.

Next, Our Lady of Guadelupe v. Morrissey-Berru addressed the extent to which teachers at religious schools are protected — or not — by employment discrimination laws. The Court ruled that the teachers fell under the “ministerial exception,” barring certain employment-discrimination claims brought against religious organizations.

The Court sought to protect the schools’ autonomy with respect to internal management decisions essential to the institution’s central mission, one component being the selection of the individuals who play certain key roles. The Court found elementary teachers at religious schools to play such key roles, in this case, teaching religion to students. This decision is concerning because the school could determine an educator in any position, including those with primarily non-secular duties, could be deemed a “minister” and thus fired for any reason.

Finally, Little Sisters of the Poor v. Pennsylvania, addressed employee health insurance. The Affordable Care Act enacted under the Obama administration obligated covered employers to provide contraceptive coverage to employees through their group health plans. But subsequent regulation enacted under the Trump administration created a religious exemption. Some states sued, arguing the exemption was unlawful given the ACA, but Little Sisters, operating facilities akin to nursing homes, argued that it did not go far enough. The Court, siding with Little Sisters, found that the religious exemption applied. As Justice Ruth Bader Ginsburg argued, this decision “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and absent another available source of funding, to pay for contraceptive services out of their own pockets.”

Better news comes from Bostock v. Clayton County. Here the Court found Title VII to prohibit discrimination against employees based on their sexual orientation or gender identity.

Bostock decided three cases, including Altitude Express Inc. v. Zarda from the Second Circuit in New York.

NYSUT filed an amicus brief in that case. The Court said “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

And, in Department of Homeland Security v. Regents of the University of California the Court ruled to save DACA, the Deferred Action for Childhood Arrivals program, a decision important to young immigrants living in the country illegally who were brought here as children.

DACA allows them to work, attend school and live in the US without fear of deportation. The Trump administration sought to dismantle DACA, but its efforts to do so violated the Administrative Procedure Act. While this decision keeps the dream alive, additional legislation or regulation will be needed to assure DACA recipients a path toward legal residency and citizenship. NYSUT filed an amicus brief in the Circuit court.

Looking ahead, three applications for Supreme Court review are pending in post-Janus cases.

Plaintiffs there allege the unions must pay back dues for the time prior to Janus. Those cases were dismissed at the lower level.

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