With Supreme Court hearings on hiatus, Catholic groups may face wait for justice

shutterstock 726187462 Supreme Court of the United States. | Shutterstock

After the coronavirus pandemic forced the Supreme Court to postpone oral arguments in cases scheduled in March and April, several Catholic institutions are waiting on the status of their religious freedom cases.

The timeline for the contraceptive mandate case of the Little Sisters of the Poor, with oral arguments originally scheduled for April 29, is now unclear. After the religious order received a religious exemption from the HHS contraceptive mandate in 2017, the states of Pennsylvania and California sued the government asking that they be stripped of the exemption.

The sisters in 2018 were allowed to intervene in the lawsuit, and in January the Court agreed to hear their case.

"The briefing is almost done," Mark Rienzi, president of Becket which represents the Little Sisters and other Catholic institutions, said on Tuesday on a conference call with reporters.

But, Rienzi said, the briefing is "not fully done" and the case of the nuns is "in the bucket" of cases where justices will have to determine an argument date "as the spring develops"-or even decide the case without in-person oral arguments.

"The justices have said that they will consider their options in light of changing events as things go forward," Rienzi said.

Supreme Court cases involve several phases, which include the submission of briefs from both sides of a case and of friend-of-the-court briefs by supporters of each side, oral arguments which are normally in-person in the Court's chamber, and the issuance of written opinions.

With the coronavirus spreading, and the U.S. Centers for Disease Control recommending gatherings of no more than 10 people, the Supreme Court announced on Monday that it would postpone oral arguments in all cases that were scheduled for the month of April.

Would such a delay pose significant harm for religious groups and individuals seeking relief or protection at the Court? Rienzi said that none of the delays in the spring term cases would significantly harm these institutions.

Of the Little Sisters of the Poor, he said that "they run homes for the elderly, so their daily and unwavering focus is, and has always been, taking care of the elderly people who are particularly in danger right now."

Of course, as the nuns have been litigating their case for almost a decade, they should receive clarity as soon as possible, Rienzi said.

"This, frankly silly, saga has gone on for eight or nine years with, at times, the federal government, and with, at times, state governments pretending that they need nuns in order to give people contraception, which has always been a whacky argument and a bad position for the government to take," Rienzi said. So far, the order has been shielded from heavy fines by the Supreme Court.

One case where any delay could seriously impact plaintiffs is Fulton v. City of Philadelphia, the case of Catholic Social Services of the Archdiocese of Philadelphia which is currently barred by the city from providing foster care adoption referrals.

Even though Catholic Social Services had not turned away same-sex or unmarried couples in adoption referrals, the city, which has a monopoly on the area foster care system, cut its partnership with them in March of 2018 over their religious beliefs on marriage. The city also passed a resolution calling for an investigation of religious foster care agencies after a same-sex couple complained of discrimination by a seperate faith-based agency.

Catholic Social Services is barred from making new placements unless they agree to recommend same-sex couples to adopt children.

Currently, the organization is only serving children they have already placed with foster care families and is on a "wind-down" contract. They have already begun laying off employees, even though there are families who want to adopt children and work with Catholic Social Services.

"That is one where the agency is urgently pushing and does need the help, because the city has cut them off from all new placements," Rienzi said. "That's a real, ongoing harm to the agency, that's a real, ongoing harm to those families who have signed up to do the very noble work of fostering, and it's also a real, ongoing harm to a bunch of kids whose names we don't know."

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The Supreme Court agreed in February to hear the case which is now scheduled for the fall 2020 term. Becket's opening brief in the case is due May 27, and amicus briefs in support of Catholic Social Services are due June 3.

As the briefings are moving forward, "in the ordinary course, we'd expect that case to be argued in October," Rienzi said, but that timeline could also be affected by the coronavirus.

Several religious freedom cases have already been argued and are fully briefed, so a decision can be expected "any day now," Rienzi said. "The justices have indicated that they are still continuing proceeding with their decisions."

One of those is Espinoza v. Montana Department of Revenue which involves students using state scholarships to attend religious schools.

A trio of cases argued in the fall involves whether or not existing Title VII civil rights protections against sex discrimination also apply to sexual orientation and gender identity. Those cases are Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and Harris Funeral Homes, Inc. v. EEOC.

As with Espinoza, decisions in those cases could be published any day now, Rienzi said.

Two other cases-Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel-involve the "ministerial exception." The cases focus on whether or not two Catholic schools in California are free to fire religion teachers without adverse action by the courts, due to the "ministerial exception."

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Becket, which represents the schools, says that the courts and government cannot "second-guess" the employment decisions of religious institutions regarding staff members who provide religious instruction to children.  

The cases were scheduled to be argued in March but have been postponed. As with the case of the Little Sisters of the Poor, all the briefs have been submitted and thus it is unclear what the timeline will be for these cases, Rienzi said.

"The justices have said that they will consider their options in light of changing events as things go forward," he said. "We're kind of waiting to see what happens, and what the Court says is possible."

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