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At the U.S. Supreme Court today, justices carved out a major exception to the nation's fair employment laws. By a 7-to-2 vote, the court ruled that the country's civil rights laws barring discrimination on the job do not apply to most teachers at religious elementary schools and potentially at middle and high schools as well. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The cases before the Court involve two fifth-grade teachers at Catholic schools in California who were fired from their jobs. One, a veteran of 16 years at her school, claimed age discrimination. The other said she was fired after telling her superior that she had breast cancer and would need some time off, an allegation that if true would be a violation of the Americans With Disabilities Act. The schools deny the charges but maintain that, regardless, federal employment laws do not apply to their teachers because they are all required to teach religion 40 minutes a day, in addition to other academic subjects.
Today the Supreme Court agreed. Writing for the seven-justice majority, Justice Samuel Alito said, state interference in religious education would violate the free exercise of religion guaranteed by the First Amendment. Therefore, federal courts are not allowed to settle employment disputes involving teachers at these schools. The decision would appear to strip fair employment protections from some 149,000 teachers at religious elementary schools where religion is routinely taught along with other subjects. As to the nearly 200,000 teachers at religious middle and high schools, it is not entirely clear what will happen. Stanford law professor Michael McConnell.
MICHAEL MCCONNELL: If there's a teacher that does not have religious responsibilities, I think that teacher falls outside the exception. So for example, a physics teacher in high school would not be covered.
TOTENBERG: But what if the physics teacher is also a homeroom teacher who leads the class in prayer or accompanies the class to Mass?
DOUGLAS LAYCOCK: That's a fair question, and it's certainly an open question after this opinion.
TOTENBERG: University of Virginia law professor Douglas Laycock filed a brief siding with the religious schools in this case. And he concedes that there will be injustices in some cases.
LAYCOCK: We tolerate the occasional abuses because the cost of judges and juries second guessing every personnel decision - the costs of that are on the whole much greater.
TOTENBERG: Today's decision leaving lay teachers without anti-discrimination protections was one of three major decisions in recent weeks that seek to rebalance the law when it comes to the separation of church and state. In another decision today, the court upheld a Trump administration rule that allows employers with religious or moral objections to opt out of providing birth control coverage for their employees. And last week, the Supreme Court effectively invalidated state constitutional provisions in most states that bar taxpayer funds from going to private religious schools. Stanford law professor Jeffrey Fisher, who represented the fired teachers in today's case, sees this trilogy of opinions as having major consequences.
JEFFREY FISHER: The court has issued three big decisions in favor of its view of religious liberty in a way that makes this perhaps the most pro-religion court in the history of our country.
TOTENBERG: For much of the 1900s, the Supreme Court's legal opinions stressed the idea of separation between church and state. But as the court has grown more conservative in the last two decades, it has increasingly abandoned that notion and instead focused its opinions on protecting the free exercise of religion and greater accommodation between church and state. University of Chicago law professor David Strauss.
DAVID STRAUSS: I do think there is a tone in these opinions that religious groups are not being taken seriously enough, a tone that in our society today religious groups are looked down on, they're not protected.
TOTENBERG: In short, the religious groups are victims of discrimination. Justices, of course, are to some extent the product of their life experiences and education. Six of the nine were raised as Catholics, and five of them were educated at parochial schools. In the teacher case, Justice Sonia Sotomayor, who was educated at parochial schools, wrote the dissent for herself and Justice Ruth Bader Ginsburg. Sotomayor pointed to specific provisions that Congress wrote into the nation's anti-discrimination laws so that places of worship could choose their own religious leaders. In expanding those exceptions beyond their historic narrowness, she said, the court majority has leveled a constitutional broadside at hundreds of thousands of employees who work not just at religious schools, but also religious hospitals, charities and universities.
The court did not address such expansive questions today, but if Sotomayor is right, millions of employees could find themselves excluded from the protections of the federal fair employment laws.
Nina Totenberg, NPR News, Washington.
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