By DEACON MIKE MANNO
(Editor’s Note: Deacon Mike Manno, an attorney, is director of deacons for the Diocese of Des Moines and host of Iowa Catholic Radio’s Faith On Trial program [www.iowacatholicradio.com]. He can be reached at deaconmike@iowacatholicradio.com.)
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The Supreme Court is due to issue its final rulings for the term by the end of June. Among the pending cases are a couple that haven’t received the attention they deserve, but that court watchers interested in religious freedom are following.
The first is a consolidation of three cases that are challenging the church exemption from compliance with the Employee Retirement Income Security Act of 1974, more commonly known as ERISA.
Due to increasing financial irregularities in pension plans that left many employees cheated out of moneys that they had depended upon, Congress passed ERISA to try to ensure pension beneficiaries that they would receive what was promised to them. The law did not require that a company establish a pension plan, but did require that certain standards be met if a company chose to offer one.
ERISA, among other things, provided for standards of disclosure to plan beneficiaries, it established a standard of conduct for plan administrators, and it provided for access to the federal courts for aggrieved parties. Compliance with these requirements can be costly and inconvenient for businesses and their pension plan administrators.
However, ERISA also provided an exception for plans established by a church or an affiliated church organization. The question, then, seemed fairly simple: Was a particular plan established by a church or a church organization? If so it was exempt from provisions of the law, unless it chose to be covered. That worked fine, for a while.
More recently, however, several class action suits were filed by employees of religiously affiliated hospitals and other entities claiming that their employer was wrong to claim the ERISA exemption because they were not churches or church organizations. For example, a hospital founded and managed by an order of nuns was not, as the plaintiffs claimed, a church and neither was it a church organization, thus ERISA did not apply and the plaintiffs (and their lawyers) were entitled to millions of dollars in compensation.
Federal district courts around the country were split on the question, but three appellate courts upheld the plaintiffs’ position and ruled that the ERISA exemption did not apply in situations where the plan was not established by a church or church organization, ruling that, as in the example above, the hospital was neither.
The words of the law, amended in 1980, exempted from ERISA any “plan established and maintained for its employees…by a church . . . includes a plan maintained by an organization . . . controlled by or associated with a church.”
Thus the literal reading of the law says that unless a plan was created by a church or church organization, such as a diocese, it would not qualify for the exemption; hospitals and charities that established their own plans could not claim the exemption, or so say the Third, Seventh, and Ninth Circuit Courts of Appeal.
Weighing in on the side of permitting the exemptions were the continuous rulings by the Labor Department and the IRS, as well as other federal courts, that these plans were covered by the exemption. The consolidated cases were argued before the Supreme Court on March 27 and from all appearances the exemptions will be upheld. At oral argument the justices seemed unwilling to extend the application of ERISA to cover plans that for 30 years have been deemed exempt.
Stay tuned for that one; if it goes the wrong way it could be very costly for many hospitals and charitable organizations.
The other case being watched is Masterpiece Cakeshop v. Craig. This is an appeal from the Colorado Court of Appeals which upheld a ruling by the Colorado Civil Rights Commission that a Lakewood, Colo., baker violated the state’s public accommodations law by refusing to sell a wedding cake to a same-sex couple.
The events occurred before the Supreme Court “found” the right to same-sex marriage in the U.S. Constitution and Colorado, at the time, did not recognize it.
Two men planned to be married in Massachusetts, which did recognize same-sex marriage, and to later celebrate with friends in Colorado. When they sought to purchase a wedding cake from Masterpiece, the shop’s owner, Jack Phillips, refused on religious grounds.
Needless to say, the two men filed a complaint with the civil rights commission which found the baker was in violation of the law and ordered that the shop take remedial measures, including staff training (re-education, as the Soviets would call it), and to file quarterly compliance reports with the commission for two years.
The baker appealed and the court of appeals upheld the commission ruling finding that Masterpiece did not have the right to withhold its services due to the complainants’ status (being homosexual). Thus, it rejected the baker’s right to refuse on religious grounds to provide the cake; it called the public accommodations law “neutral” in regard to religion; nor did the baker have the right to refuse on First Amendment speech grounds since providing the cake would not cause the casual observer to conclude that Masterpiece endorsed same-sex marriage.
Similar cases, involving other bakers, florists, and photographers have been popping up across the nation. But the odd thing about Masterpiece isn’t about the facts of the case itself; it is about the timing and review given to it by the court.
The petition to the Supreme Court was filed June 22, 2016 — almost a year ago; and to date it has been on the court’s conference agenda over a dozen times and still the court has taken no action to either grant or deny review.
When the justices meet to determine which applications for review they will grant, only those applications in which four of the nine justices agree will be accepted (called the rule of four). Several other similar cases have been passed up by the court, so if the judicial philosophy was to affirm the state court’s decision the case should have been rejected by now. But there are a couple of reasons why it might still be pending.
The first was to give a new justice time to be appointed and confirmed. Okay, but that has already happened. The second reason might be that there are not four justices who wish to hear the case and those who do need more time to write a dissent to the denial to review. Or, the third is that the justices are waiting for another case to consolidate with Masterpiece to give a broader look at the whole question of public accommodation laws and First Amendment rights in relation to same-sex marriage.
The Swing Vote
And what might that case be? Let me suggest State of Washington v. Arlene’s Flowers. That case involves a florist in Washington State, Barronelle Stutzman, who found herself in the same situation as the owner of Masterpiece Cakeshop.
She had a friend to whom she sold flowers for many years, but when he asked her to arrange flowers for his same-sex wedding, she refused, was sued, and the outcome was the same as for the baker.
Now there are some specific differences between Masterpiece and Arlene’s Flowers, such as Mrs. Stutzman did not object to selling her friend the flowers; she just declined to design them for the same-sex wedding ceremony. However, the important legal issues are much the same and it is possible the court is waiting for the Washington case.
And, to make it a little more interesting, Arlene’s Flowers has until July 16 to submit its full petition to the court.
If you think about it, Justice Anthony Kennedy who authored the Obergefell decision (recognizing same-sex marriage as a right) is rumored to be stepping down from the High Court this summer. Kennedy has been the swing vote on a court divided 4-4-1. Assuming the rumors are true, by the time the court convenes for its next term in October there should be another Trump justice among the nine.
Food for thought and speculation, but unfortunately, not the product of any inside information.
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