Christian Groups Target Controversial Legal Doctrine as Key to Preserving Religious Liberty

By Published on July 31, 2023

Religious groups are backing a push for the Supreme Court to reverse precedent that gives deference to agency interpretations of laws, arguing that the nearly four-decades old ruling has been the impetus for several church-state conflicts.

The Supreme Court will hear a case next term, Loper Bright Enterprises v. Raimondo, that challenges “Chevron deference,” a legal doctrine rooted in a 1984 precedent that instructs courts to defer to administrative agency interpretations of laws when the language is ambiguous. While the Loper Bright case stems from family-owned fishing companies’ fight against an agency requiring them to pay the salaries of state-mandated observers onboard their ships, forcing them to shell out what amounts to 20% of their revenue, Alliance Defending Freedom Senior Counsel Julie Blake told the Daily Caller News Foundation that more than economic prosperity is at stake.

“In addition to threatening economic prosperity, administrative agencies threaten the issues that matter the most to regular Americans: the right to life, the biological difference between men and women, the right to religious freedom, the right to free speech and parental rights,” Blake told the DCNF. “Restraining the administrative state in this case helps protect the freedoms of all Americans by respecting the separation of powers.”

Critics of the doctrine argue it empowers federal agencies by allowing them to enforce expansive interpretations of certain statutes. As Pacific Legal Foundation attorney Adi Dynar put it, Chevron deference “puts a thumb on the scales of justice at the expense of American citizens facing federal agencies in courts,” allowing agencies to evade checks and balances on their actions from the judicial branch.

ADF filed an amicus brief in the case this week on behalf of the Christian Employers Alliance, arguing that deferring to agencies threatens the separation of powers in a way that leads to infringing on Americans’ fundamental freedoms.

CEA points to examples of agencies citing Chevron to justify policies that raise religious liberty concerns, such as an HHS mandate that interprets “sex” in Section 1557 of the Affordable Care Act to ban discrimination against gender identity and require doctors to perform sex-change procedures.

When challenged, CEA notes that the HHS “asserted Chevron deference in its attempt to shield its reinterpretation of Section 1557 from direct review.”

“This interpretation was rejected by some courts as contrary to the statute,” the brief notes. “But other courts, rather than hold that HHS lacks statutory authority, issued injunctions against this mandate under the Religious Freedom Restoration Act — something that would be unnecessary if the statutory question was properly resolved in the absence of a looming Chevron analysis.”

Blake told the DCNF one of the most “egregious examples” of Chevron deference is how the Biden administration is using it to direct family planning funds to abortion clinics.

“Under the Biden administration, the U.S. Department of Health and Human Services (HHS) has successfully invoked Chevron to prevent judicial review of its decision to redirect hundreds of millions of dollars of Title X family planning funds to abortion clinics,” the brief explains. “But for Chevron, HHS never would have tried to change the requirements of Title X, and there would be no litigation.”

Backed by the Becket Fund for Religious Liberty, the Little Sisters of the Poor, who notably took on the Obamacare contraceptive mandate and won their case at the Supreme Court in 2016, also filed a brief this week.

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“The common thread over more than a decade of regulation and litigation is that federal regulators, motivated by politics and ideology, disfavored unpopular religious groups at every turn,” their brief argues. “Each loss in this Court was met not with acquiescence but with yet more aggressive regulatory creativity.”

“Abjuring a rule of judicial deference that tends to fuel executive overreach is a good in itself,” the Little Sisters of the Poor wrote. “But eliminating undue deference will also reduce future church-state conflicts, since most recent religious liberty conflicts have originated not with Congress but with regulators.”

Religious groups aren’t the only ones with a vested interest in seeing Chevron overturned. Second Amendment advocates, the U.S. Chamber of Commerce, 27 state attorneys general, 36 members of Congress and the House’s Bipartisan Legal Advisory Group are among 171 parties who filed briefs in favor of reconsidering Chevron deference.

“Everyone’s life is touched by federal regulation,” Ryan Mulvey, Cause of Action Institute counsel and co-counsel for the fishermen bringing the case, said in a statement. “And everyone has the potential to be negatively impacted by unlawful government overreach or denied a fair hearing due to Chevron.”

“The number of amicus filings reflects broad interest in overruling Chevron and ending unchecked power in the hands of government bureaucrats,” Mulvey continued.


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