Three consecutive wins for religious freedom in the US

by Daniela Ellerbeck
31 July 2020

By Daniela Ellerbeck, FOR SA Legal Advisor

Recent weeks have seen quite a few controversial judgments coming out of the highest court in America, the Supreme Court of the United States of America (SCOTUS).

In the matter of Bostock, SCOTUS redefined “sex” to include sexual orientation and gender identity. As pointed out by dissenting judgments, this decision – although praised as a victory for individual liberty – will have dire consequences for various other fundamental rights, including the right to religious freedom. (For FOR SA’s article on this landmark case, click here.)  In the last two months, however, there have also been some victories for religious freedom coming out of SCOTUS. This article’s purpose is to examine those.

A win for donors of religious private schools

The first of these wins is Espinoza v Montana Department of Revenue, which judgment came out only 15 days after the watershed decision in Bostock. The case concerns the State of Montana’s (Montana’s) unfair discrimination against religious private schools with regards to funding. Montana has a program that grants tax credits to people who donate towards scholarships for private school tuition. This means that people who donated towards organisations that award scholarships for private school fees, could write that donation off against their tax due to the State.  However, Montana’s State Constitution bars its Government from financially aiding any school “controlled in whole or in part by any church, sect, or denomination”. As a result, the Montana Department of Revenue declared that no donations towards a religious private school’s scholarships could be written off by the donor against their tax.

Three mothers sued Montana, alleging that it unfairly discriminated against them, because of their religious beliefs and/or because they had chosen to send their children to a religious school.  Montana argued that their position was in line with the State’s interest in not funding the training of clergy, relying on a previous case where the person was denied a scholarship “because of what he proposed to do — use the funds to prepare for the ministry”.

SCOTUS said that Montana’s “no-aid provision” did not specifically focus on excluding religious courses from funding, but rather it barred aid to a religious private school “simply because of what it is”.  It excluded religious private schools from public benefits solely because of their religious status.  SCOTUS accordingly struck down the provision, saying it infringed on the First Amendment of the US Constitution and that “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Commentators have noted that SCOTUS’ reasoning will probably be applied to all forms of State-funding.  In other words, Government cannot simply exclude a group from funding (for which it would otherwise be eligible) because of that group’s religious nature.

Then just over a week later, SCOTUS handed down two separate judgments that, likewise, were victories for religious freedom.

A win for religious employers

Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania involved exemptions given by the executive branch of Government (specifically the Departments of Health and Human Services; Labour; and the Treasury) to employers that object, because of either their sincerely held religious beliefs or moral objections, from providing employees with health care plans that cover various contraceptive methods.

SCOTUS had already previously, in another case (Hobby Lobby), held that the contraceptive mandate substantially affected the religious freedom of those who hold sincere religious objections to providing their employees with certain methods of contraception.

As a result of the exemptions, the states of Pennsylvania and New Jersey sued the executive branches of Government, alleging that they lacked the authority to make such exemptions and that there were procedural errors.

SCOTUS decided that the executive branches had the authority to promulgate these religious and moral exemptions and that it had done so in a manner free of procedural defects.

A win for religious employers

In Our Lady of Guadalupe School v Morrissey-Berru, SCOTUS had to decide whether courts could adjudicate employment discrimination claims between religious private schools and the teachers they employ.

This case involved two elementary school teachers at two separate Roman Catholic schools in the Archdiocese of Los Angeles. Both teachers’ employment contracts described their school’s mission as developing and promoting a Catholic school faith community, and imposed on the teachers obligations regarding religious instruction; worship; and a personal modelling of the Catholic faith.  Both contracts further explained that teachers’ performance would be reviewed on these bases.

Both teachers’ employment contracts were terminated, causing them to sue their respective schools.

American law has a principle similar to the doctrine of entanglementin South African law: their First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine”. As a result, the First Amendment prevented courts from entertaining employment discrimination claims in the context of a religious institution.  This is known as the “ministerial exemption” principle.

However, there is no rigid formula for deciding when an employee qualifies as a “minister”.  Instead, what matters, is what an employee actually does.  Thus, the crux of the matter was whether these two teachers’ cases fell under the ambit of the “ministerial exemption” principle.

SCOTUS said that a religious institution’s independence – when it came to matters of faith and doctrine – was closely connected to independence in matters of church government.  For this reason, SCOTUS held that courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.

Further, it recognised that, amongst other things, educating young people in their faith and training them to live out their faith, are responsibilities that lie at the very core of a religious private school’s mission.  Hence, it was apparent that both teachers fell under the ambit of the “ministerial exemption” principle, because they both performed vital religious duties, such as educating their students in the Catholic faith and guiding their students to live their lives in accordance with that faith. Furthermore, both religious private schools had expressly seen them as playing a vital role in carrying out the Catholic church’s mission.

The judgment is important, as it allows religious private schools to choose and employ teachers who reflect the school’s understanding of their faith, and to do so free from Government interference.


Although these cases do not have any binding effect on South African courts, they are nevertheless interesting and important, both from a comparative law point of view and in picking up international trends in the area of religious freedom law which do – at times – spill over into our local context.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

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