Organizations interject religious-liberty issues in what could be landmark fisheries case

Supreme Court this term currently has no cases related directly to religious issues

U.S. Supreme Court building. Photo by Adam Michael Szuscik, licensed by Unsplash.

The U.S. Supreme Court’s term that began this week currently doesn’t include any cases that deal directly with religious establishment or freedom — a contrast with recent years in which the high court has decided much-publicized disputes such as those involving a football coach who wanted to pray in public and a postal worker who didn’t want to work on Sundays. But that doesn’t mean that First Amendment issues relating to religion won’t be argued.

Two Christian organizations, each represented by one of two major law firms dealing with religion-related issues, have filed friend-of-the-court papers interjecting claims of religious freedom into what is expected to be one of the legally most significant cases to be decided this term, Loper Bright Enterprises v. Raimondo. On its surface, the case has nothing to do with religion — in fact, it relates to the application of a 1976 law affecting marine fisheries.

The main issue in Loper Bright is whether the high court should uphold or overrule Chevron v. Natural Resources Defense Council, a landmark 1984 ruling that established a legal test for whether courts should uphold the actions of regulatory agencies. Chevron has been cited by courts thousands of times in upholding regulatory agencies and is considered one of most significant rulings in administrative law. The Chevron case basically granted federal administrative agencies a great deal of latitude in interpreting statutes that they implement.

If Chevron is overruled, the decision likely would create a transfer of power from executive agencies to Congress. It could lead to a reevaluation of federal regulations on nearly every conceivable issue.

Chevron has generally been supported by liberals and opposed by conservatives, who fear that the ruling gives too much deference to unelected bureaucrats. Much of the opposition to Chevron has involved cases related to environmental regulations.

At least three court members, including Chief Justice John John Roberts, have questioned Chevron in recent rulings, and the court could have chosen a variety of appeals in which it could review Chevron. The case it chose involved a family-owned fishing company that claims the National Marine Fisheries Service has inappropriately taken advantage of an ambiguously worded statute by requiring fishing companies to pay for certain monitoring of their operations.

The two organizations that have raised religious arguments in friend-of-the-court papers are the Little Sisters of the Poor Saints Peter and Paul Home and the Christian Employers Alliance. The first is a Roman Catholic charity based in Pennsylvania that has become known in legal circles for opposing the inclusion of abortion and contraceptive services in its health plans, and the second is an organization of Christian-owned businesses that provides legal advocacy for its members.

Little Sisters is receiving legal support from the Becket Fund for Religious Liberty; the CEA is backed by the Alliance Defending Freedom.

The two organizations make similar although not identical legal arguments. Both claim that overruling Chevron is necessary to prevent infringement of their freedoms as they relate to implementation of health-care laws. (The CEA also points to education laws that affect matters such as gender discrimination.) The Little Sisters points primarily to the long-running legal battle it has had with mandates for abortion, sterilization and contraceptive coverage; the CEA mentions those issues and also claims that federal agencies “are weaponizing federal civil-rights laws to impose radical gender ideology” in violation of the rights of businesses to act in accordance with the religious views of their owners.

The CEA sums up its main points like this:

When they are not actively restrained by courts, agencies regularly threaten fundamental rights by reinterpreting statutes that do not say what agencies want them to say, to impose mandates in service of nation-shaping political agendas. This Court should hold once and for all that agencies are not entitled to blank checks to read their policy preferences into silent or even ambiguous federal statutes. The Chevron regime may have originated with the best of intentions and a proper respect for agency expertise. But time has shown that the doctrine has encouraged political bureaucrats to reinterpret federal laws in a way that threatens life, religious liberty, free speech, parental rights, and common sense about men and women. It is well past time for that judicial deference to end.

The high court has yet to schedule oral arguments in the case, and there is no way to know whether the court will even consider the religious-liberty arguments. Most of the other friend-of-the-court arguments against Chevron come from groups known for opposing federal executive power; those asking the court to uphold Chevron are a variety of social, health, environmental and labor organizations.

It does not appear that friend-of-the-court arguments filed by supporters of Chevron bring up the religious issues.