Religious Exemption Laws & the Conservative Legal Movement
Elizabeth Reiner Platt
The contemporary debate around the right to free exercise of religion — and its limits — focuses overwhelmingly on conservative Christian beliefs about sex, gender, marriage, and reproduction. This is understandable given the vast resources and focus that the Christian right has placed on gaining religious exemptions from laws that advance LGBTQ nondiscrimination and reproductive health. The most well-known Supreme Court religious exemption cases of the past decade — including Burwell v. Hobby Lobby (2014), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and Fulton v. City of Philadelphia (2021) — have all involved challenges to LGBTQ equality and reproductive rights. Yet as the Covid pandemic has made clear, religious exemptions have the potential to undermine a far wider range of laws and policies.
In recent years, religious exemptions have been used to advance not only conservative religious beliefs about sex, marriage, and reproduction but also the broader goals of the conservative legal movement, such as cabining state administrative powers, deregulating the public marketplace, and allocating government funding and programs to private entities. In last year’s Tandon v. Newsom decision, for example, the Supreme Court overrode state public health experts by holding that people of faith should be exempted from Covid regulations that limited large gatherings. Other even less-publicized Supreme Court cases include Advocate Health Care Network v. Stapleton (2017), which expanded the religious exemption from a law protecting employee pension programs, and Our Lady of Guadalupe School v. Morrissey-Berru (2020), which broadened the right of religious organizations to engage in disability, age, and other forms of discrimination.
This article is adapted from “Parading the Horribles: The Risks of Expanding Religious Exemptions,” a recent report by the Law, Rights, and Religion Project. The report, which I co-authored, explores ten distinct areas where litigants have filed suit demanding religious exemptions from important legal protections. These include: 1) minimum wage and workers’ rights; 2) race discrimination; 3) other forms of discrimination; 4) access to divorce; 5) child welfare; 6) the right to union organizing; 7) the provision of public services; 8) public health; 9) criminal laws, and; 10) a catch-all category, listing idiosyncratic religion claims such as one demanding the right to dress “like a chicken” at a court hearing. Importantly, “Parading the Horribles” cites real cases — not imagined hypotheticals. It thus both predicts and responds to the question of whether religious groups and practitioners would, given the opportunity, really demand exemptions from requirements to pay the minimum wage, the right to divorce, or laws protecting children from abuse or neglect. In truth, such claims have already been brought — and sometimes won.
In this condensed piece, I have arranged these varied claims into only three (albeit overlapping) categories, in order to better highlight the ways in which religious exemptions have been highly effective at advancing three primary goals of the conservative legal movement beyond the Christian right. The article ends by looking ahead at how expanding religious exemptions are — in the name of religious freedom — likely to further unravel the state’s ability to advance important interests such as nondiscrimination, workers’ rights, and public health.
Confining the Administrative State
Laws, policies, and litigation filed to protect religious exercise have been an effective means of cabining the regulatory power of administrative agencies — a longstanding goal of the conservative movement. In the public health context, the Covid pandemic triggered a massive litigation campaign by conservative (predominantly, but not exclusively Christian) law firms. These suits have been very successful in restricting the ability of federal, state, and local health departments to enforce regulations, including gathering bans and vaccine mandates, on religious objectors. Most notably, the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo and Tandon v Newsom ruled that if a Covid gathering ban allows public access to locations such as banks and grocery stores, it cannot be enforced on those gathering for worship. This absolutist rule has made it all but impossible for public health departments to craft Covid restrictions that would apply to religious objectors.
Since these opinions, dozens of new Covid religious exemption demands have been filed, including by Catholic schools in Michigan and Washington, D.C. challenging a mask mandate. Students and military personnel have also sued for — and, in some cases, have initially won — exemptions from Covid vaccine mandates (though the Supreme Court declined to hear religious exemption claims brought by health care workers and teachers). In addition to this litigation, some states have introduced or passed laws broadly excusing religious activities and institutions from compliance with certain administrative public health requirements. For example, in 2021, Texas passed two separate laws prohibiting public officials from ordering religious organizations to close — even during an emergency or disaster. At the time of writing this article, a similar bill is awaiting the signature of Governor DeSantis in Florida.
Religious exemptions have also limited the ability of government agencies to regulate families, schools, daycares, and other institutions in order to protect child welfare. Religious exemption policies (and lawsuits) in some states shield religiously affiliated schools and childcare facilities from government licensing, regulation, and oversight in ways that can put children at risk. For example, it took years of complaints of violent abuse at one religiously affiliated reform school before Alabama passed a law requiring state oversight of such facilities. Religious exemption laws, lawsuits, and regulations have also allowed parents to refuse required child immunizations, and to pull their children out of school before the legal minimum age.
Deregulating the Public Marketplace
Many free exercise claims have attempted or succeeded in limiting the scope of regulations imposed on private corporations, both nonprofit and for-profit. Such claims align closely with the broader conservative goal of deregulating the private sector. One area of frequent (and, I would predict, increasing) free exercise litigation involves employers seeking exemptions from policies intended to protect workers’ rights, including wage and benefits and union organizing laws. Policies prohibiting discrimination in the workplace, public accommodations, housing, and schools have also been the subject of frequent religious exemption litigation and advocacy.
Suits demanding exemptions from paying the minimum wage have had mixed results. In the infamous 1985 case Tony & Susan Alamo Foundation v. Secretary of Labor, the Supreme Court rejected a religious group’s argument that it should be exempted from the minimum wage requirement of the Fair Labor Standards Act (FLSA). The organization argued that its several affiliated businesses need not pay their workers, described as “drug addicts, derelicts, or criminals before their conversion and rehabilitation by the Foundation,” who were compensated only with “food, clothing, shelter, and other benefits.” Since then, religious employers have, sometimes successfully, defended against lawsuits alleging violations of minimum wage law by arguing that their workers were not employees but “volunteers”.
In other cases, religious employers have argued that their workers were ministers, and that ministers should be exempt from the minimum wage. This argument derives from the “ministerial exception” rule that was formally adopted by the Supreme Court in the 2012 case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exception limits the application of some employment laws to employees performing religious duties. Since 2012, the Court has broadened the rule to cover more workers.
Religious entities have also sought exemptions to avoid compliance with bans on child labor and the requirements to pay equal wages and benefits to women, to offer employee health insurance (in a case brought by Liberty University), and to pay workers’ compensation. While many — though not all — of these efforts have failed, religious employers have in some cases gained exemptions from whistleblower protection laws, sexual harassment laws, the requirement to fully fund employee pension plans (the aforementioned Advocate Health Care Network v. Stapleton), and the requirement to cover contraception in employee health insurance plans.
Religious colleges and universities have been granted religious exemptions from provisions of the National Labor Relations Act (NLRA) otherwise requiring them to recognize unions. In 2020, for example, a federal court ruled that the National Labor Relations Board, which enforces U.S. labor laws, had no jurisdiction over a Catholic university in Pennsylvania, stymying an effort to unionize adjunct faculty members. This ruling could easily be extended to other large, religiously affiliated organizations such as religious hospital systems, which employ thousands of people. Moreover, given that the Supreme Court has extended religious exemption policies to cover for-profit companies, even for-profits with religious owners might file suit claiming that recognizing unions would violate their religious faith.
Employers, public accommodations, landlords, and private schools have also filed countless claims seeking religious exemptions from laws banning discrimination — including discrimination on the basis of race. While claims involving a faith-based right to exclude or segregate Black people in employment, education, and public accommodations were far more common in earlier decades, similar claims are still brought today. Although the Supreme Court in 2014 dismissed the idea that broad religious exemptions would lead to race discrimination, several cases have in fact allowed such discrimination by religious entities. In the 2018 case Beans v. Trinity Episcopal School, a judge dismissed a lawsuit that accused a religious school in Texas of failing to protect a student from racist bullying. The court agreed with the school’s claim that it could not “intrude upon a religious institution’s management of its internal affairs.” Other race discrimination suits brought by a seminary professor in Kentucky, an addictions counselor at the Salvation Army in Michigan, and others have also been dismissed because the employees were deemed “ministers” and therefore unprotected by antidiscrimination law.
Many more cases have been brought by private institutions seeking the religious right to deny jobs, housing, and services to LGBTQ+ people, religious minorities and atheists, unmarried couples and parents, women, people with disabilities, and others. The results of these cases have been mixed, but some have led to the creation of religious exemptions from civil rights laws of all kinds. In 2019, an Arizona calligraphy company won the right to refuse to sell wedding invitations to same-sex couples. Courts have exempted religious employers from laws prohibiting a hostile work environment. Numerous entities have been permitted to fire pregnant unmarried employees, with other cases ongoing. Landlords in several states have also sued for — and sometimes won — permission to refuse housing to unmarried couples. Finally, several “ministerial exception” cases — including the foundational Hosanna-Tabor case mentioned above — have allowed religious organizations to discriminate against teachers and certain other employees based on age and disability in violation of the Americans with Disabilities Act and the Age Discrimination in Employment Act.
As the Supreme Court expands the right of religious entities to be exempt from government regulation, the types of workers considered “ministers,” and which entities count as “religious” (including some for-profits), more and more institutions could gain a right to engage in — or ignore — discrimination and harassment.
Shifting Government Funds to Private Entities
Finally, free exercise policies and litigation have been used to secure public funding for private religious entities — which are then frequently granted religious exemptions from compliance with terms of government contracts that conflict with their beliefs. Diverting public funds, programs, and responsibilities — most significantly the education of children — to private entities has long been a goal of large factions of the conservative movement. Religious exemption suits have been one means of expanding the kinds of private entities eligible for government funds and restricting the conditions that governments can place on such funding.
Most notably, in the 2020 case Fulton v. City of Philadelphia, the Supreme Court held that a city not only may — but under some circumstances must — award a paid contract to a private religious child welfare organization that refused to provide services to same-sex couples. In another ongoing case, a government-funded child welfare agency in South Carolina is defending its ability to refuse to place children (who are wards of the state) with Catholics. The agency has also turned away Jews. In recent years, both states and federal agencies have adopted (or considered) religious exemption policies allowing for-profit and nonprofit recipients of government funds to reject certain terms of government grants and contracts.
While not religious exemption cases, other free exercise suits have successfully made the argument that withholding government funds from religious entities in an effort to robustly enforce the Establishment Clause in fact violates the Free Exercise Clause. The 2017 case Trinity Lutheran Church v. Comer, for example, held that a state agency’s policy of excluding religious schools from a competitive grant program was unconstitutional. This year, the Supreme Court is considering Carson v. Makin — a case that would require Maine to direct funding to religious schools as part of its student aid program.
Far from being limited to a narrow set of issues, religious exemptions have undercut emergency public health orders, curbed oversight of religious schools and childcare facilities, limited worker protections and union organizing, and undermined laws prohibiting discrimination and harassment. The expansion of religious exemptions may therefore be seen not only as an effort of the religious right, but as one facet of the larger conservative legal movement’s commitment to deregulation and privatization. It is worth noting that the ongoing expansion of free exercise rights has not tended to shield faith practices that are seen as more progressive, such as the protection of sacred Native American sites from environmental destruction or of Muslim communities from religion-based surveillance by law enforcement. (I explore such cases more fully in the 2019 report “Whose Faith Matters? The Fight for Religious Liberty Outside the Christian Right.”)
None of this is to say that religious exemptions are never warranted. Religious exemptions have been used to ensure that people in prison have access to kosher and halal food; that schoolchildren and members of the military are able to wear religious head coverings and hairstyles; and that members of small religious groups, including indigenous religions, are not criminally prosecuted for the ritual use of substances like hoasca and peyote. Crucially, however, none of these exemptions threaten the rights of third parties. As the right to religious exemptions expands, we must recognize and prepare for the impact they will have on a growing number of essential rights and liberties. ♦
Elizabeth Reiner Platt is the director of the Law, Rights, and Religion Project at Columbia Law School, a law and policy think tank that advocates for religious liberty, pluralism, and social justice. She publishes widely on the intersection of religious freedom and other fundamental rights.
Platt, Elizabeth Reiner. “Religious Exemption Laws & the Conservative Legal Movement.” Canopy Forum, April 22, 2022. https://canopyforum.org/2022/04/22/religious-exemption-laws–the-conservative-legal-movement/.