The Catholic University of America


Welcome to the Religion Section of our webpage. This front page will reflect our most current information on either constitutional law or statutory law on religion affecting educational institutions. 

OFCCP Directive 2018-03 on Religous Exemption to EO 11246 sec. 204(c)*

Issued August 10, 2018.  OFCCP staff are reminded that they must not "act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices," "cannot condition the availability of [opportunities] upon a recipient's willingness" to forgo their religious status, and must give faith-based and community organizations a level playing field to compete for federal contracts.

National Institute of Family and Life Advocates (NIFLA) v. Becerra. Case No. 16-1140 (U.S. Supreme Ct. June 26, 2018)

In a 5-4 decision, the Supreme Court ruled in favor of pro-life pregnancy centers by declaring unconstitutional the California Reproductive Freedom, Accountability, Comprehensive, Care, and Transparency Act (FACT Act)’s requirement for licensed and unlicensed pregnancy centers to provide notices of free or lost-cost family planning services, including abortions.
The Ninth Circuit, in upholding the legislation, had stated the required notice survived the lower level of scrutiny applicable to regulations of “professional speech” and that the notice for unlicensed centers satisfies any level of scrutiny. The Supreme Court reversed, finding the licensed notice was a content based regulation of speech that did not survive even intermediate scrutiny.

These notice requirements were deemed to violate the First Amendment’s protection for free speech. In regards to the licensed notices, the Court evaluated the notice requirements under ordinary First Amendment principles. Because the FACT Act’s notice requirements targeted mainly pro-life pregnancy centers, they were determined to be insufficiently narrowly tailored to meet California’s purported interest of informing low income woman of state sponsored pregnancy related services. Justice Thomas stated in his majority opinion that “[s]uch ‘[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint’”
The FACT Act’s notice requirement for unlicensed pregnancy centers similarly violated First Amendment principles. The Court found that requiring mainly pro-life unlicensed pregnancy centers to give notices of state sponsored contraceptive and abortions, “targets speakers, not speech and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”

In Justice Kennedy’s concurring opinion, he summarized the case as follows:

This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

… It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.


Masterpiece Cakeshop, Ltd. et al. v. Colorado Civil Rights Commission et. al., Case No. 16-111 (U.S. Supreme Ct. June 4, 2018)


In a 7-2 decision on the Free Exercise Clause of the First Amendment, the Supreme Court held that the Colorado Civil Rights Commission had shown hostility to the religious views of the owner of Masterpiece Cakeshop. The case arose when Masterpiece Cakeshop refused to create a custom wedding cake for a same-sex marriage celebration because of the owner’s religious objections to gay marriage. Masterpiece Cakeshop was willing to create cakes for the couple for events other than a same-sex marriage.

Masterpiece argued that creation of a custom wedding cake was expressive, and constitutionally protected as a free exercise of religion. The Supreme Court (in a series of concurring opinions) held that the Civil Rights Commission ruling was inconsistent with the First Amendment guarantee that laws be applied in a neutral manner toward religion.

The government “cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgement upon or presupposed the illegitimacy of religious beliefs and practices.”

In this case, the Court found that the Commission did not act with the required neutrality based upon statements made by the commissioners contemporaneously with their decision that passed judgement on the illegitimacy of Masterpiece’s beliefs, and the Commission’s disparate treatment in upholding the policies of bakers in subsequent cases who refused to make cakes that made derogatory statements towards same-sex marriage. Accordingly, the Court found that the Commission adjudicated Masterpiece’s claim from a negative normative judgment of its beliefs, rather than with neutrality required by the Free Exercise Clause of the Constitution.

The Courts decision was a narrow holding based on the particular facts of this case. The Court explicitly left open the possibility of different outcomes for future cases involving religious objections to providing goods and services for gay marriages. The majority opinion concluded by stating, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Principles of Religious Liberty Memorandum issued to all administrative and executive agencies from AG Sessions regarding religious liberty protections in federal law. Issued October 6, 2017. Further Guidance on Implementation on this issue directed to the Justice Department on the same date. 

Interim Final Rule on Religious Exemptions and Accommodations for Coverage of Certain Contraceptive Services under the ACA, to be published in Federal Register on 10/13/17.  
This interim final rule has been issued to provide conscience protections for individuals and entities with sincerely held religious beliefts. 

For write ups on the latest cases and other developments in this area, see the Stradley Ronon Nonprofit and Religious Organizations web page for a series of timely alerts, which are posted halfway down the page.