The Supreme Court on Monday heard arguments in a case that will determine the length to which schools are protected from nondiscrimination laws.
The case, Our Lady of Guadalupe School v. Agnes Morrisey-Berru, concerns whether or not Catholic parochial schools can hire or fire religion teachers at will, regardless of considerations such as age, race, or gender. The Supreme Court in 2012 provided a similar exception to churches for the employment of ministers. If it extends that exception, the case could have wide-reaching implications for nearly any employee at a private religious school.
The school’s attorney, Eric Rassbach, told the court that the court’s ministerial exception in the 2012 case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, provides incomplete exemptions for churches. Rassbach, a senior counsel at the Becket Fund for Religious Liberty, said that restricting exceptions to people with “minister” in their church title “wrongly elevates form over function” because many churches employ people who perform “important religious functions” without calling them ministers.
Churches, Rassbach said, should be free to decide the employment of religious teachers especially, since it is their function within the church to pass on its beliefs from one generation to the next. Furthermore, he added, “controlling religious functions” is not in society’s interests and is prohibited by the First Amendment’s free exercise clause.
Assistant to the Solicitor General Morgan Ratner, who also argued on behalf of the school, said that rather than to rely on titles to determine if religious exceptions apply, as the court unanimously decided in Hosanna-Tabor, the court should devise new guidelines for future litigation. In addition to exempting church officials who perform teaching and preaching functions, Ratner said the court should exempt “other employees who preach their belief, teach their faith, and carry out their mission” as well.
Justice Samuel Alito raised the issue of relying on the ministerial title for exceptions in his questions to Morrisey-Berru’s attorney, Jeffery Fisher. Alito noted that the term “minister” exists mainly within Protestant denominations — and that applied to leaders in other faiths, its meaning “becomes less and less clear.”
Especially in the case of a Catholic school, he said, it does not make sense, as most lay Catholic teachers do not have a formal ministerial title. Alito added that he would like to “jettison” the term “ministerial exception” from the discourse entirely. Alito previously wrote a concurring opinion in Hosanna-Tabor, arguing that the ministerial exception should be extended to include rabbis and imams.
Fisher, who argued the case on the basis that titles were the most accessible way to provide exemptions, responded that in his view, any person “not assuming a position of spiritual leadership of the congregation” should not be eligible to fall under the ministerial exception. Fisher noted that if implemented, the new exception could potentially endanger the security of more than 3,000 teachers’ jobs.
A great deal of the case’s contentious nature stems from the fact that the terms proposed for the new ministerial exception are vague and invite questioning about hypothetical situations. This was not the case in Hosanna-Tabor, where the court decided that a Lutheran school was free to fire a teacher, who, because of Lutheran doctrinal teaching, was also classified as a minister.
“Requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere employment decision,” Roberts said in the court’s opinion. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
The facts in Morrissey-Berru, a consolidation of two lower court cases, are not as clear-cut. Two Catholic schools near Los Angeles fired two religion teachers for reasons unrelated to their promulgation of the faith. The first, Agnes Morrissey-Berru, was asked to leave because the school felt that she had grown too old. The second, Kristen Biel, lost her job after she had to take time off for chemotherapy during a bout with breast cancer.
Both teachers sued on the basis that the school had fired them for discriminatory reasons. And the ensuing lawsuits opened a host of questions from critics of the schools defending their decisions. Many feared that protecting churchs’ ability to remove teachers without reasons given would lead to unchecked racial and gender discrimination.
In an amicus brief filed with the Supreme Court, the National Women’s Law Center and the Leadership Council on Civil & Human Rights wrote that extending the ministerial exceptions in Hosanna-Tabor would endanger many already marginalized teachers.
“This court should apply the Hosanna-Tabor factors so that women, people of color, older workers, workers with disabilities, LGBTQ workers, immigrant workers, and those with multiple and intertwining protected identities, are afforded critical civil rights protections,” it wrote.
Justice Ruth Bader Ginsburg addressed some of these concerns in her questions to Ratner, saying that the proposed “breadth of this exemption is staggering.” Ginsburg also raised the hypothetical of a Catholic school teacher who has discovered one of their students has been abused by a priest. If that teacher is fired by the school for reporting on the priest, Ginsburg asked, should the school be protected from nondiscrimination laws?
“Requiring a particular religious reason misses the point of the exemption,” Ratner replied, adding that the case should only concern firewalling church decisions from state control, instead of focusing on the particular circumstances of any one employment decision.
Both Ratner and Rassbach delivered similar responses to other hypotheticals raised by Justice Brett Kavanaugh and Justice Elena Kagan. Both repeatedly said that their case did not rest on the legitimacy of any church’s hiring or firing decision but on the ability for churches to choose who promulgates their faith, without fear of legal repercussions.
Richard Garnett, a law professor at Notre Dame, said that the court is likely to reaffirm its decision in Hosanna-Tabor because not to do so would threaten to entangle government entities in the way churches are run.
“These cases are not, as some have complained, about a supposed right of churches to ‘ignore’ civil rights laws,” he said. “Quite the contrary. These cases are about protecting the civil and constitutional rights of religious institutions to decide religious questions for themselves. Governments lack power regarding these questions.”
