The Supreme Court heard arguments Monday in an important religious liberty case pitting the First Amendment’s religion clauses and anti-discrimination employment law against one another.
The nine justices heard Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, two consolidated cases that revolve around whether religious organizations should be able to choose their teachers in alignment with their faith without any interference from the government.
The lawsuits at issue were filed by two teachers who sued separate Catholic schools after being fired. The schools’ attorneys argue the cases should be tossed out due to the “ministerial exception,” a legal doctrine that protects religious institutions from being sued for discrimination if the employee is a “minister.”
The justices peppered both sides with a number of questions, but the bulk of the arguments centered around the question: What designates an employee or the work to be religious enough so that they fall under that exception?
Eric Rassbach, counsel for Our Lady of Guadalupe, told the justices, “If the separation of church and state means anything, it means that the government cannot interfere with a church’s decisions about who is authorized to teach its religion.” He argued that, since the teachers in these particular cases were the “primary agents” for teaching the Catholic faith to children, they do fall within the ministerial exception.
Several justices pushed back on Rassbach, asking who would not fall under the exception or how the court should make that distinction to avoid similar lawsuits. Justice Ruth Bader Ginsburg asked if the coach who leads players in an opening prayer would fall under that category. Justice Clarence Thomas, who rarely asks questions but has been more involved since arguments are now heard over the phone during the COVID-19 pandemic, also asked Rassbach to explain how a court should decide if an employee performs an important religious function.
In an email, Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, said he saw this line of questioning as a sign the court is leaning in favor of the schools. Observing the oral arguments, Goodrich said, “We saw broad agreement among the Justices to protect freedom of religious groups to choose who teaches the faith to the next generation.” Goodrich continued: “The teachers’ lawyer argued that even full-time religion teachers who teach only religion aren’t covered by the Constitution. The Justices didn’t buy it. At least two said it would hurt religious minorities and Justice [Elena] Kagan said it was ‘surprising.’”
Based on the arguments, all of the justices were concerned about making a decision that would spur additional lawsuits about this issue, yet they also wanted to protect religious institutions and employees alike. The path to accomplishing this, however, was unclear.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
