Certiorari To The United States Court Of Appeals For The Third Circuit

No. 19-431. Argued May 6, 2020--Decided July 8, 2020 1

The Patient Protection and Affordable Care Act of 2010 (ACA) requires covered employers to provide women with “preventive care and screenings” without “any cost sharing requirements,” and relies on Preventive Care Guidelines (Guidelines) “supported by the Health Resources and Services Administration” (HRSA) to determine what “preventive care and screenings” includes. 42 U. S. C. §300gg–13(a)(4). Those Guidelines mandate that health plans provide coverage for all Food and Drug Administration approved contraceptive methods. When the Departments of Health and Human Services, Labor, and the Treasury (Departments) incorporated the Guidelines, they also gave HRSA the discretion to exempt religious employers, such as churches, from providing contraceptive coverage. Later, the Departments also promulgated a rule accommodating qualifying religious organizations that allowed them to opt out of coverage by self-certifying that they met certain criteria to their health insurance issuer, which would then exclude contraceptive coverage from the employer’s plan and provide participants with separate payments for contraceptive services without imposing any cost-sharing requirements.

   Religious entities challenged the rules under the Religious Freedom Restoration Act of 1993 (RFRA). In Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, this Court held that the contraceptive mandate substantially burdened the free exercise of closely held corporations with sincerely held religious objections to providing their employees with certain methods of contraception. And in Zubik v. Burwell, 578 U. S. ___, the Court opted to remand without deciding the RFRA question in cases challenging the self-certification accommodation so that the parties could develop an approach that would accommodate employers’ concerns while providing women full and equal coverage.

   Under Zubik’s direction and in light of Hobby Lobby’s holding, the Departments promulgated two interim final rules (IFRs). The first significantly expanded the church exemption to include an employer that “objects . . . based on its sincerely held religious beliefs,” “to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.” 82 Fed. Reg. 47812. The second created a similar “moral exemption” for employers with sincerely held moral objections to providing some or all forms of contraceptive coverage. The Departments requested post-promulgation comments on both IFRs.

   Pennsylvania sued, alleging that the IFRs were procedurally and substantively invalid under the Administrative Procedure Act (APA). After the Departments issued final rules, responding to post-promulgation comments but leaving the IFRs largely intact, New Jersey joined Pennsylvania’s suit. Together they filed an amended complaint, alleging that the rules were substantively unlawful because the Departments lacked statutory authority under either the ACA or RFRA to promulgate the exemptions. They also argued that the rules were procedurally defective because the Departments failed to comply with the APA’s notice and comment procedures. The District Court issued a preliminary nationwide injunction against the implementation of the final rules, and the Third Circuit affirmed.


  1. The Departments had the authority under the ACA to promulgate the religious and moral exemptions. Pp. 14–22.

   (a) As legal authority for both exemptions, the Departments invoke §300gg–13(a)(4), which states that group health plans must provide women with “preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].” The pivotal phrase, “as provided for,” grants sweeping authority to HRSA to define the preventive care that applicable health plans must cover. That same grant of authority empowers it to identify and create exemptions from its own Guidelines. The “fundamental principle of statutory interpretation that ‘absent provision[s] cannot be supplied by the courts,’ ” Rotkiske v. Klemm, 589 U. S. ___, ___ applies not only to adding terms not found in the statute, but also to imposing limits on an agency’s discretion that are not supported by the text, see Watt v. Energy Action Ed. Foundation, 454 U. S. 151, 168. Concerns that the exemptions thwart Congress’ intent by making it significantly harder for interested women to obtain seamless access to contraception without cost-sharing cannot justify supplanting the text’s plain meaning. Even if such concerns are legitimate, they are more properly directed at the regulatory mechanism that Congress put in place. Pp. 14–18.

   (b) Because the ACA provided a basis for both exemptions, the Court need not decide whether RFRA independently compelled the Departments’ solution. However, the argument that the Departments could not consider RFRA at all is without merit. It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as “Federal law” or “the implementation of [Federal] law” under RFRA. §2000bb–3(a). Additionally, this Court stated in Hobby Lobby that the mandate violated RFRA as applied to entities with complicity-based objections. And both Hobby Lobby and Zubik instructed the Departments to consider RFRA going forward. Moreover, in light of the basic requirements of the rulemaking process, the Departments’ failure to discuss RFRA at all when formulating their solution would make them susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem. Pp. 19–22.

  2. The rules promulgating the exemptions are free from procedural defects. Pp. 22–26.

   (a) Respondents claim that because the final rules were preceded by a document entitled “Interim Final Rules with Request for Comments” instead of “General Notice of Proposed Rulemaking,” they are procedurally invalid under the APA. The IFRs’ request for comments readily satisfied the APA notice requirements. And even assuming that the APA requires an agency to publish a document entitled “notice of proposed rulemaking,” there was no “prejudicial error” here, 5 U. S. C. §706. Pp. 22–24.

   (b) Pointing to the fact that the final rules made only minor alterations to the IFRs, respondents also contend that the final rules are procedurally invalid because nothing in the record suggests that the Departments maintained an open mind during the post-promulgation process. The “open-mindedness” test has no basis in the APA. Each of the APA’s procedural requirements was satisfied: The IFRs provided sufficient notice, §553(b); the Departments “g[a]ve interested persons an opportunity to participate in the rule making through submission of written data, views or arguments,” §553(c); the final rules contained “a concise general statement of their basis and purpose,” ibid.; and they were published more than 30 days before they became effective, §553(d). Pp. 24–26.

930 F. 3d 543, reversed and remanded.

 Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a concurring opinion, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.

1 Together with 19–454, Trump, President of the United States, et al. v. Pennsylvania et al., on certiorari to the same Court.


Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19-267. Argued May 11, 2020--Decided July 8, 2020 1

The 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.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116. Applying this principle, this Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Adopting the so-called “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees, the Court found relevant Perich’s title as a “Minister of Religion, Commissioned,” her educational training, and her responsibility to teach religion and participate with students in religious activities. Id., at 190–191.

   In these cases, two elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles had teaching responsibilities similar to Perich’s. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School (OLG), and Kristen Biel taught at St. James School. Both were employed under nearly identical agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases. Each was also required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, worshipped with her students, prayed with her students, and had her performance measured on religious bases.

   Both teachers sued their schools after their employment was terminated. Morrissey-Berru claimed that OLG had demoted her and had failed to renew her contract in order to replace her with a younger teacher in violation of the Age Discrimination in Employment Act of 1967. OLG invoked Hosanna-Tabor’s “ministerial exception” and successfully moved for summary judgment, but the Ninth Circuit reversed, holding that Morrissey-Berru did not fall within the exception because she did not have the formal title of “minister,” had limited formal religious training, and did not hold herself out publicly as a religious leader. Biel alleged that St. James discharged her because she had requested a leave of absence to obtain breast cancer treatment. Like OLG, St. James obtained summary judgment under the “ministerial exception.” But the Ninth Circuit reversed, reasoning that Biel lacked Perich’s credentials, religious training, and ministerial background.

Held: The First Amendment’s Religion Clauses foreclose the adjudication of Morrissey-Berru’s and Biel’s employment-discrimination claims. Pp. 10–27.

  (a) The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what the Court has termed “ ‘matters of church government.’ ” Hosanna-Tabor, 565 U. S., at 186. For this reason, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. Pp. 10–11.

  (b) When the “ministerial exception” reached this Court in Hosanna-Tabor, the Court looked to precedent and the “background” against which “the First Amendment was adopted,” 565 U. S., at 183, and unanimously recognized that the Religion Clauses foreclose certain employment-discrimination claims brought against religious organizations, id., at 188. Pp. 11–14.

  (c) In Hosanna-Tabor, the Court applied the “ministerial exception” but declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” 565 U. S., at 190. Instead, the Court identified four relevant circumstances of Perich’s employment at an Evangelical Lutheran school. First, Perich’s church had given her the title of “minister, with a role distinct from that of most of its members.” Id., at 191. Second, her position “reflected a significant degree of religious training followed by a formal process of commissioning.” Ibid. Third, she “held herself out as a minister of the Church” and claimed certain tax benefits. Id., at 191–192. Fourth, her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” Id., at 192. Pp. 14–16.

  (d) A variety of factors may be important in determining whether a particular position falls within the ministerial exception. The circumstances that informed the Court’s decision in Hosanna-Tabor were relevant because of their relationship to Perich’s “role in conveying the Church’s message and carrying out its mission.” 565 U. S., at 192. But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission. Pp. 16–21.

  (e) Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor. There is abundant record evidence that 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. Their titles did not include the term “minister” and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employees in the life of the religion in question is important. Pp. 21–22.

  (f) The Ninth Circuit mistakenly treated the circumstances the Court found relevant in Hosanna-Tabor as a checklist of items to be assessed and weighed against each other. That rigid test produced a distorted analysis. First, it invested undue significance in the fact that Morrissey-Berru and Biel did not have clerical titles. Second, it assigned too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling that Perich. Third, the St. James panel inappropriately diminished the significance of Biel’s duties. Respondents would make Hosanna-Tabor’s governing test even more rigid. And they go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a “practicing” member of the religion with which the employer is associated. Deciding such questions risks judicial entanglement in religious issues. Pp. 22–27.

No. 19–267, 769 Fed. Appx. 460; No. 19–348, 911 F. 3d 603, reversed and remanded.

 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.

1 Together with No. 19–348, St. James School v. Biel, as Personal Representative of the Estate of Biel, on certiorari to the same Court.