RELIGIOUS EXEMPTIONS
EDITED BY ANN FITZGERALD, MADISON ORLOFSKI, KAITLYN WILLOUGHBY, &
SAVANNAH JELKS
I. INTRODUCTION ........................................ 933
II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS .................. 934
III. THE MINISTERIAL EXCEPTION............................. 936
A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL
V. EEOC ........................................ 937
B. EEOC V. R.G. & G.R. HARRIS FUNERAL HOMES, INC.. . . . . . . 938
C. OUR LADY OF GUADALUPE SCHOOL V. MORRISSEY-BERRU ...... 939
IV. PRIVATE BUSINESSES’ RELIGION-BASED COMPLAINTS AGAINST
STATE AND FEDERAL STATUTES ........................... 943
A. BURWELL V. HOBBY LOBBY STORES, INC................... 943
B. MASTERPIECE CAKESHOP LTD. V. COLORADO CIVIL RIGHTS
COMMISSION ...................................... 946
C. 303 CREATIVE, LLC V. ELENIS ......................... 952
V. RELIGIOUS EXEMPTIONS TO PROVIDING HEALTH CARE .......... 954
A. THE CHURCH, COATS-SNOWE, AND WELDON AMENDMENTS . . . . . 956
1. Trump Era Regulation: Protecting Statutory Conscience
Rights in Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
2. Minton v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
3. Chamorro v. Dignity Health . . . . . . . . . . . . . . . . . . . . . . . . . 960
B. REFUSALS TO FILL PRESCRIPTIONS ....................... 961
VI. RELIGIOUS EXEMPTIONS TO PROVIDING HOUSING .............. 963
VII. CONCLUSION ......................................... 965
I. INTRODUCTION
The First Amendment protects the free exercise of religion. When religious
beliefs conflict with laws prohibiting discrimination based on sex or sexual orien-
tation, courts must balance freedoms of religion, association, and speech with the
government’s interest in a more equal society. Organizations are sometimes
exempted from anti-discrimination laws on religious grounds, allowing them to
fire, exclude, or deny services to women and members of the LGBTQIAþcom-
munity. In 1993, Congress responded to the Supreme Court’s refusal to strike
down a law prohibiting the use of peyote, even for religious purposes, by passing
933
the Religious Freedom Restoration Act (RFRA).
1
RFRA created a two-prong bal-
ancing test: the government must not substantially burden a person’s exercise of
religion unless (1) it is in furtherance of a compelling government interest and (2)
it uses the least restrictive possible means of furthering that interest.
2
RFRA does
not discuss the ministerial exception, which “precludes application of such legis-
lation to claims concerning the employment relationship between a religious
institution and its ministers.”
3
The exception was expanded by the 2020 decision
in Our Lady of Guadalupe School v. Morrissey-Berru.
4
Part II of this Article traces the development of religious exemptions through
major cases involving public accommodations laws. Part III reviews the ministe-
rial exception. Part IV explores cases involving private businesses and religious
exemptions. Parts V and VI discuss religious exemptions to providing healthcare
and housing, respectively. Finally, Part VII provides a conclusion and forecasts
the future development of the law in this area.
II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS
Fulton v. City of Philadelphia was argued before the Supreme Court on
November 4, 2020.
5
The major petitioner in the case, Catholic Social Services
(CSS), was under contract with the city of Philadelphia to find placements for fos -
ter children.
6
After a newspaper reported that that CSS would only place children
with opposite-sex couples,
7
leading to criticism from several branches of the city
government, Philadelphia’s Department of Human Services told CSS that, based
on Philadelphia’s non-discrimination laws, the city would no longer refer foster
children to CSS unless it began certifying same-sex couples.
8
CSS then sued the
city under the First Amendment, asking for an order requiring Philadelphia to
renew its contract and allowing CSS to refuse to refer foster children to same-sex
1. “[T]he Supreme Court virtually eliminated the requirement that the government justify burdens on
religious exercise imposed by laws neutral toward religion.” Religious Freedom Restoration Act of
2. 42 U.S.C.A. § 2000bb-1 (West, Westlaw through Pub. L. No. 119-1).
Additionally, RFRA’s reach was limited by the majority opinion in City of Boerne v. Flore s, in which
the Court held that RFRA’s application to the states was an unconstitutional overreach of Congressional
power. The statute only binds the federal government. City of Boerne v. Flores, 521 U.S. 507, 536
4. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 738 (2020) (holding that a lack of
religious training or title does not exclude teachers at religious schools from the ministerial exception).
5. Fulton v. City of Phila., 593 U.S. 522 (2021).
6. Id. at 526–27. Sharonell Fulton was a previous foster mother through CSS and was listed as a
plaintiff along with several other foster mothers. Id. at 550.
7. References to gay, straight, or same-sex marriages often ignore the complexities of gender,
sexuality, and partnerships. Referring to “straight couples,” for example, might be a misnomer based on
assumptions that people in an opposite-sex relationship are straight, and not bisexual or gender-
nonconforming. This Article applies terms as used in the cases and briefs while acknowledging this
shortcoming.
8. Fulton, 593 U.S. at 530–31.
934 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:933
families.
9
The district court denied the request.
10
The Third Circuit affirmed, rul-
ing that Philadelphia’s policy was constitutional under Employment Division v.
Smith, which held that neutral laws of general applicability may prohibit or com-
pel action contrary to religious belief without violating the First Amendment.
11
The Supreme Court granted certiorari in 2020.
12
Petitioners argued that Philadelphia violated the First Amendment by limiting
their speech and religious expression.
13
They claimed laws infringing on religious
liberty should be assessed under the strict scrutiny standard of review.
14
CSS
argued that, to renew their contract with the city, they would have to choose
between forced speech, e.g. “speak[ing] Philadelphia’s preferred message on
marriage,” or forced silence, e.g. no longer providing foster care.
15
Petitioners
also claimed that Philadelphia’s law was not neutral, evidenced by hostility to-
ward CSS and the city’s selective application of policies to CSS, which peti-
tioners felt targeted their religious beliefs.
16
Neutral laws or not, petitioners
argued that the Court should overturn Smith and apply strict scrutiny to any chal-
lenge to religious liberty.
17
Respondents argued that Philadelphia’s non-discrimination requirement is a
neutral policy that did not infringe on the free exercise or free speech clause rights
of CSS.
18
Respondents claimed that they acted in a managerial position with
regards to CSS, giving the city greater discretion to balance competing interests.
19
Additionally, CSS was only restricted as a government contractor, not restricted
privately by the government.
20
Philadelphia took issue with CSS’s assessment
that they had to be silent or endorse all marriages; respondents alleged this was a
misunderstanding of state law, which did not force CSS to do or say anything
contrary to their religious beliefs.
21
If the Court ruled for Fulton, respondents
argued, government functions could be encumbered, with agents “perform[ing]
their jobs as they see fit.”
22
The American Civil Liberties Union warned that gov-
ernment-funded agencies could “deny services to people who are LGBTQ,
Jewish, Muslim, or Mormon.”
23
Fulton v. City of Philadelphia, ACLU, https://perma.cc/CKM7-NQJH.
But petitioners claimed a ruling for Philadelphia
9. Id. at 531.
10. Id.
11. Id. at 532.
12. Id.
13. Brief for Petitioners, Fulton v. City of Phila., 593 U.S. 522 (2020) (No. 19-123), 2020 WL
2836494, at *17.
14. Id. at *33–36, 50.
15. Id. at *31.
16. Id. at *17.
17. Id. at *37.
18. Brief for City Respondents, Fulton v. City of Phila., 593 U.S. 522 (2020) (No. 19-123), 2020 WL
4819956, at *28
19. Id. at *15–16.
20. Id. at *24–28.
21. Id. at *44–46.
22. Id. at *11.
23.
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