My Faith Votes | SCOTUS Watch | July 17, 2020


SCOTUS Watch | July 17, 2020

SCOTUS recently finished the current session’s term and is beginning its summer recess. There were several significant rulings in the last two weeks and we took a deeper look at three cases last week. This week, we look at four cases involving a wide range of topics including the Electoral College, Religious Liberty, the President’s Taxes, and Native American land in Oklahoma.

In this issue we review the following cases:

  1. Our Lady of Guadalupe School v. Morrissey-Berru
  2. McGirt v. Oklahoma
  3. Trump v. Vance; Trump v. Mazars USA, LLP; Trump v. Deutsche Bank AG
  4. Chiafalo v. Washington

Our Lady of Guadalupe School v. Morrissey-Berru

In a 7-2 decision, the court ruled that Catholic elementary school teachers are “ministers,” and cannot sue for employment discrimination. Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students, and the court – in an opinion by Justice Samuel Alito – agreed.

The decision came in a pair of cases, both filed by fifth-grade teachers against parish schools in the Los Angeles area. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School in Hermosa Beach for nearly two decades before she was told that her contract would not be renewed. Morrissey-Berru went to federal court, where she claimed that she had been the victim of age discrimination. The district court threw out the lawsuit, agreeing with the school that the ministerial exception applied.

The second plaintiff, Kristen Biel, sued St. James School in Torrance when – not long after she disclosed that she was being treated for breast cancer – the school failed to renew her contract. Biel claimed that the school had discriminated against her because she had cancer, but the district court agreed with the school that Biel’s lawsuit was barred by the ministerial exception.

You can read the entire ruling here.

What is the Ministerial Exception?

The First Amendment’s “ministerial exception” protects churches’ right to choose their

ministers. It is the recognition that secular courts shouldn’t be in the business of overseeing employment disputes between a church and its ministers. The First Amendment protects religious organizations’ right to make their own decisions about matters of faith, doctrine, and internal governance.

The exception applies to more than just places of worship, such as churches, synagogues, and mosques. It also protects religious schools and other religious ministries and their right to choose their leaders and teachers of faith. The exception is usually invoked in cases involving principals and teachers at religious schools, worship musicians, and leaders of religious congregations.

Justice Alito’s Majority Opinion

Writing for the court, Justice Samuel Alito stated that the First Amendment protects church autonomy — including the right of religious institutions to decide matters “of faith and doctrine” without government intrusion. This protection, Alito noted, was crucial to the Framers of our Constitution — the British Crown, for example, had the right to fill “religious offices” and to otherwise control religion.

As applied to schools, the court recognized that teachers who are entrusted with inculcating religious values and beliefs are “ministers of the faith,” even though they are not formally ordained. As such, the government may not interfere with a religious school’s decision to hire or fire such an employee.

As Alito recognized, parents choose to send their children to religious schools for “religious education and formation.” Thus, a narrow interpretation of the ministerial exception would have interfered with the ability of parents to raise their children with a distinctly religious education. In short, teachers at religious schools play a critical role in transmitting the faith to the next generation and are properly categorized as “ministers”.

Justice Clarence Thomas filed a concurring opinion that was joined by Justice Neil Gorsuch. Thomas would have gone further and ruled that if a religious organization labels an employee a minister, courts should defer to that designation.

Justice Sotomayor Dissents

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justice Ruth Bader Ginsburg. Sotomayor lamented that, as a result of the court’s decision, the teachers could be “fired for any reason,” even though they “taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.” Sotomayor criticized the majority’s opinion, arguing that it “skews the facts, ignores the applicable standard of review, and collapses” the “careful analysis” from the court’s 2012 decision “into a single consideration: whether a church thinks its employees play an important religious role.” Such a “simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protection,” Sotomayor concluded.

Sotomayor also warned about the broader implications of the ruling, suggesting that the decision could extend to “countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions.” Although the Supreme Court in its recent decision in Espinoza v. Montana Department of Revenue, held that religious schools cannot be excluded from state funding for private schools, Sotomayor alleged, “here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”

Implications for Religious Liberty

This ruling clarifies that religious organizations retain the freedom and autonomy to make employment decisions regarding “ministers,” and even non-ministers who teach or lead on matters of faith. Thus, schools are free to decide who fills these positions without interference from secular courts.

It also reinforces 2012’s unanimous decision upholding the constitutionality of the ministerial exception in Hosanna-Tabor. In addition to the ministerial exception, other religious liberty protections may be available for religious employers, including Title VII’s statutory exemption and the Religious Freedom Restoration Act (RFRA).

McGirt v. Oklahoma

In a 5-4 decision written by Associate Justice Neil Gorsuch, the Supreme Court ruled that the eastern half of Oklahoma can be considered Native American territory, a decision the state previously warned could create "civil, criminal and regulatory turmoil." Gorsuch was joined by the court's four liberal justices.

During oral arguments in May, the justices reached back to 1907 to determine whether Congress, using imprecise language, failed to disestablish the 1866 boundaries of the reservation.

This case centered on an appeal from Jimcy McGirt, a Native American, who claimed his state child-rape conviction from 1997 should be overturned because Oklahoma lacked jurisdiction. The ruling means Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma, including most of Tulsa.

You can read the ruling here.

Dissenting Justices Fear Legal Chaos

Chief Justice John Roberts, in a dissenting opinion, said that Congress made no attempt to conceal its intention to "disestablish" reservation lands. "The court suggests that Congress sought to 'tiptoe to the edge of disestablishment,'” Roberts wrote. "Quite the opposite. Through an open and concerted effort, Congress did what it set out to do: transform a reservation into a state."

Continuing in his remarks, Justice Roberts stated, “Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.” “The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

The state's solicitor general, Mithun Mansinghani, had warned in May that a ruling for Native Americans could require the release of more than 1,700 inmates. That didn't sit well with several justices who feared a chaotic overhaul of long-decided criminal cases. "Won't (residents) be surprised to learn that they are living on a reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way?" Associate Justice Samuel Alito asked.

Justices John Roberts, Brett Kavanaugh, Samuel Alito, and Clarence Thomas dissented.

Justice Gorsuch Court History with Oklahoma

Before joining the Supreme Court, Gorsuch had served on the 10th U.S. Circuit Court of Appeals, the circuit that includes Oklahoma. He recused himself from the Sharp v. Murphy case because he had been on the circuit court when one of Murphy’s previous appeals was considered. That left the court with only eight justices and — it had to be presumed since the court does not comment on such matters — a deadlock.

The court had scheduled the Murphy case to be re-argued in the term that began in October but then decided to hear the nearly identical McGirt case, which had been appealed from an Oklahoma appeals court rather than the 10th Circuit court.

That gave Gorsuch a way to participate in the broader argument of whether the Creek reservation had ever been terminated. Based on prior decisions in Indian cases, he was considered likely to be sympathetic to the argument that the reservation still existed. Those predictions were borne out in oral arguments in May when he was skeptical of the state’s arguments, and in the majority decision, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Gorsuch penned the court’s majority decision stating, “On the far end of the Trail of Tears was a promise,” he wrote. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of fed­eral criminal law. Because Congress has not said otherwise, we hold the government to its word.”

Trump v. Vance; Trump v. Mazars USA, LLP; Trump v. Deutsche Bank AG

The Supreme Court issued its long-awaited rulings in the battle over efforts to obtain financial records belonging to President Donald Trump. By a vote of 7-2, the justices sent a pair of cases challenging congressional subpoenas for the records back to the lower courts for another look, holding that subpoenas involving the president must be subject to a tougher standard than the courts had applied.

In a third case, in which the president challenged a subpoena by a Manhattan district attorney, the justices – again by a vote of 7-2 – rejected the president’s claim that he is always immune from state grand jury proceedings while he is in office. But the decision, in that case, does not mean that the financial records that the grand jury seeks will be turned over: The court sent the case back to the trial court and agreed that the president could still argue that complying with this subpoena would interfere with his ability to do his job.

The impact of the decisions is that the disputes are likely to continue in the lower courts for some time; even if the House of Representatives and the New York prosecutor ultimately prevail, neither Congress nor the New York grand jury will have access to the documents anytime soon.

More significantly, the rulings could permanently curb Congress’ formidable subpoena power against the executive branch, which lawmakers have wielded for information for decades. All the justices said Congress has deployed an overbroad interpretation of its own power.

You can read the rulings here and here.

Majority Opinions Written by Roberts

Chief Justice John Roberts, who authored the majority opinions in both of the politically sensitive subpoena disputes, said lower-court judges needed to take “a balanced approach” to the congressional subpoenas, closely examining Congress’ need for the information, ensuring that the subpoenas are tailored to those purposes and considering whether there might be alternate sources of information.

“Without limits on its subpoena powers, Congress could ‘exert an imperious control’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared,” Roberts wrote for a majority, citing the Federalist Papers. “Congressional subpoenas for information from the President ... implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns.”

In the second ruling of Trump v. Vance, Roberts again wrote for the majority, in a decision joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Roberts began by refuting the president’s suggestion that he can never be the subject of a state criminal subpoena. Roberts pushed back against the president’s contention that having to comply with a state criminal subpoena would distract him from his job as president. “[T]wo centuries of experience,” Roberts wrote, “confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.”

Roberts was similarly dismissive of the president’s claim “that the stigma of being subpoenaed will undermine his leadership at home and abroad.” Roberts acknowledged that being under a grand-jury investigation could affect public perceptions of the president. But the president has agreed, Roberts stressed, that the Constitution allows such investigations; the mere fact that the president is served with a subpoena is not likely to have much of an effect on the president’s reputation, Roberts posited. And in any event, “longstanding rules of grand jury secrecy aim to prevent the very stigma the President anticipates.”

Thomas and Alito Dissent in Both Cases

Justice Clarence Thomas dissented. He would hold that Congress can never issue a legislative subpoena for private, unofficial documents, no matter whom they belong to. “Congress may be able to obtain these documents as part of an investigation of the President, but to do so, it must proceed under the impeachment power.”

Justice Samuel Alito also filed a dissenting opinion. He agreed with his colleagues in the majority that “the lower courts erred and that these cases must be” sent back for another look, but he contended that, under the new test outlined by the majority, the subpoenas should fail “unless the House is required to show more than it has put forward to date.” “Because I find the terms of the Court’s remand inadequate,” Alito concluded, “I must respectfully dissent.”

In the second ruling, Thomas agreed that the President is not entitled to immunity from the issuance of the subpoena, but he argued that the president may be entitled to relief from the enforcement of the subpoena. Alito also dissented. Describing the “event that precipitated this case” as “unprecedented,” he too would impose a higher standard for state grand jury subpoenas like this one, requiring courts to take “into account the need to prevent interference with a President’s discharge of the responsibilities of the office.” More generally, Alito asserted, today’s decision treats the subpoena at issue like “an ordinary grand jury subpoena” – which it is not. “The Presidency,” Alito argued, “deserves greater protection.”

Chiafalo v. Washington

In a rare unanimous ruling, the Supreme Court upheld laws across the country that remove or punish rogue Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. The decision was a loss for "faithless electors," who argued that under the Constitution they have the discretion to decide which candidate to support. The high court’s decision confirms the state has a responsibility to ensure the electors chosen must honor their pledge to represent the outcome of the state’s popular vote.

The case began after the 2016 election when three Electoral College delegates pledged to Democratic nominee Hillary Clinton in Washington state and three delegates in Colorado pledged to nominee Clinton, changed their minds at the convention, and voted for other individuals, such as Colin Powell or John Kasich.

As Michael Baca, the faithless elector from Colorado stated, the idea was to "reach across the aisle" to Republican electors in 2016 and try to find a candidate that some Republican delegates would be willing to support other than Donald Trump. Baca was removed on the spot under Colorado's faithless elector law, and the Washington state delegates were fined $1,000 each. Three of the electors sued the state, alleging it had no authority to enforce their pledge to vote in line with the popular vote of the people. In 2019, Washington's law was amended to require that faithless electors be removed as well.

When the case was originally granted review by the Supreme Court, it was consolidated with Colorado Department of State v. Baca.

In the court’s opinion written by Justice Elena Kagan, she noted that the original Electoral College system created by the framers of the Constitution failed to anticipate the growth of political parties. By 1796, the first contested election after George Washington's retirement, the system exploded in disarray, with two consecutive Electoral College "fiascos." This led to the 12th Amendment in 1804, "facilitating the Electoral College ... as a mechanism not for deliberation but for party-line voting," Kagan wrote. Nothing in the Constitution prevents the states from "taking away presidential electors' voting discretion," she said. For centuries, almost all electors have considered themselves bound to vote for the winner of the state popular vote. If the framers of the Constitution had a different idea, she said, they never committed it to the printed page.

Justice Clarence Thomas joined in part by Justice Neil Gorsuch, agreed with the outcome but wrote separately to explain his different reasoning. Rather than interpret the Constitution's sparse language about the Electoral College as authorizing states to impose conditions on electors, Thomas argued that power is reserved to the states by the 10th Amendment.

Thirty-two states have some sort of “faithless elector” law, but only 15 remove, penalize or simply cancel the votes of the errant electors. The 15 are Michigan, Colorado, Utah, Arizona, Indiana, Minnesota, Montana, Nebraska, Nevada, Washington, California, New Mexico, South Carolina, Oklahoma, and North Carolina. Although Maine has no such law, the secretary of state has said it has determined a faithless elector can be removed. The court’s decision, however, is so strong that it would seem to allow states to remove faithless electors even without a state law. Duke University School of Law professor Guy-Uriel Charles said that nonetheless, it would be prudent for states to pass laws to prevent electors from going rogue.

The Supreme Court affirmed the Washington Supreme Court's decision in a unanimous ruling, holding that a state may enforce an elector's pledge to support their party's nominee and the state voters' choice for President of the United States.

You can read the ruling here.

Christians Take Notice

These rulings should remind Christians across the country to do two simple things:

  1. Pray. Faithfully pray for our Supreme Court Justices to have God’s wisdom and to uphold the Constitution that has given us the longest-running Constitutional Republic in the history of the world.
  2. Vote. The next Supreme Court appointment is critical and there is a very good chance the next President of the United States could appoint one or two new Justices to the bench.


My Faith Votes—is a nonpartisan movement that motivates, equips and activates Christians in America to vote in every election, transforming our communities and influencing our nation with biblical truth. By partnering with national faith leaders, My Faith Votes provides resources to help Christians Pray, Think, and Act to create an America where God is honored in the public square.

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