The Supreme Court Nov. 1 turned down an appeal from a Catholic hospital in California…
Should a Catholic hospital be forced to participate in transgender surgery?
A little-publicized Nov. 1 decision of the U.S. Supreme Court may be cause for big concern regarding the religious freedom of Catholic institutions. At the very least, it is a frustrating example of the state of religious freedom law and the continued hesitancy of the majority of the U.S. Supreme Court to rectify the situation.
The decision involved is the Supreme Court’s refusal to “grant certioriari” (i.e., to review a lower court’s decision) in Dignity Health v. Minton. Two California courts below (the California Supreme Court and Court of Appeal), had denied a Catholic hospital’s request to dismiss a complaint for transgender discrimination upon the hospital’s showing that it had refused, for purely religious reasons, to remove a woman’s healthy reproductive organs in order that she might identify as a man. Only Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to grant certiorari, while four are needed. Neither Chief Justice John Roberts, nor Justices Amy Coney Barrett or Brett Kavanaugh — all frequent defenders of religious freedom — voted to hear the case.
At first glance, it appears that the court’s refusal could force Catholic hospitals to perform surgeries that violate their deeply held religious convictions, as these are summarized in the Ethical and Religious Directives for Health Care (“ERDs”) adopted by the U.S. bishops and followed by all Catholic hospitals. If this is true, then what’s next? Will Catholic hospitals have to perform sterilizations upon all who ask, not just transgender-identifying persons? Implant long-acting contraceptives? Perform abortions? The consequences seem stunning.
This is especially true given that the federal Church Amendments (named after Senator Frank Church) explicitly ban any public authority from requiring a health care entity to perform sterilizations violating their religious convictions. Furthermore, in a series of cases, the Supreme Court has explicitly affirmed religious institutions’ freedom to live out their faith and mission without interference from the state. And finally, there is the First Amendment’s guarantee of the “free exercise” of religion.
But a closer look at the series of opinions in Minton indicates that the above-described draconian outcomes may not be a given. Instead, it is possible that even as the hospital will likely lose its religious freedom bid when the case is fully heard in the California courts, it may get another opportunity to petition the Supreme Court to decide the ultimate, substantive religious freedom issues involved. At the same time, the long and tortuous legal saga of this case indicates the inadequacy of the protection currently provided to religious institutions, even in scenarios clearly involving ridiculous burdens upon their freedom to live out their beliefs.
After briefly summarizing the facts of the case, I will describe the California holding and the arguments for and against certiorari. Then I will highlight the weaknesses in religious freedom protection this case exposes, and suggest what might happen going forward.
Evan Minton’s doctor scheduled Evan for a hysterectomy surgery at Mercy San Juan Medical Center, a hospital in the Dignity Health chain. The hospital canceled the surgery after learning that it was a step in Evan’s plan to manifest her subjective identity as a man: first by having her female reproductive organs removed, and then undergoing a “phalloplasty.” The hospital asserted that it was abiding by the ERDs, which forbid elective sterilizations and allow the hospital to perform hysterectomies only when there is a “present and serious pathology” requiring the surgery. Dignity Health arranged to have the surgery done three days later at another hospital owned by Dignity, not governed by the ERDs
Evan filed suit under a California law called the Unruh Civil Rights Act, claiming that the hospital intentionally discriminated against her by refusing to provide her “full and equal access” to medical care on the grounds of her transgender identity. She reasoned that the hospital was willing to perform hysterectomies only upon female patients who do not identify as transgender. The hospital responded by filing what is called a “demurrer,” asserting essentially that even if Evan’s facts were true, they do not state a legal claim. A lower court in California handed the hospital a victory, but this was overturned by an appeals court, whose opinion was then affirmed by the California Supreme Court.
Minton argued against the Supreme Court’s granting certiorari on the grounds that the case was not ripe for review because there was not a final judgment; California had merely denied Dignity a “demurrer,” but had not ruled on the nondiscrimination or religious freedom claims. This argument may have influenced the Supreme Court’s refusal to grant certiorari at this time.
Dignity, however, argued that the case was ripe for Supreme Court review because the California Appeals Court had opined that under no circumstance would religious freedom trump the state’s compelling interest in ending discrimination, and that the federal Constitution’s Free Exercise Clause provided no protection to religious health care institutions faced with mandates to perform surgeries violating their faith. Furthermore, in order to reach this result, the California court engaged in verbal sleight of hand by refusing to acknowledge the difference between discrimination against transgender-identifying persons and refusing to engage in conduct cooperating with transgender ideology.
In other words, common sense would conclude that the Catholic hospital refused to engage in particular conduct because of its religious convictions: It does not perform sterilizations; it does not destroy healthy organs; it does not cooperate in affirming a person’s subjective beliefs about their sex that contradict their biology. But Minton and the California court phrased the matter differently: They said that a “public accommodation” (the hospital) refused to provide a service for a transgender person that they would provide for non-transgender persons. The lawyer in me almost admires the sleight of hand! But it fails to honestly describe the religious institution’s situation: its inability to undertake conduct directly opposed to its beliefs.
What happens next? It seems likely that the hospital will pursue a full trial and eventually, on appeal, lose to the judgment of a California court holding likely that the hospital was engaging in transgender discrimination and that affirming transgender identity is always a more “compelling state interest” than religious freedom.
Then Dignity can appeal again to the Supreme Court with one or more straightforward questions engaging the substantive law of religious freedom: Did the hospital really engage in transgender discrimination or rather simply follow their religious conscience? Is the state’s interest really compelling enough to quash religious freedom? What should “count” as a compelling interest anyway? And should the Supreme Court precedent (Employment Division v. Smith) currently providing little free exercise protection to religious citizens and institutions stand or fall?
Helen M. Alvaré is a professor of law at Antonin Scalia Law School at George Mason University. She writes from Virginia.