Labor & Employment Law Daily Justices take up ministerial exception for religious employers
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Friday, May 15, 2020

Justices take up ministerial exception for religious employers

By Pamela Wolf, J.D. and Joy P. Waltemath, J.D.

Is it “who controls who teaches the faith to schoolchildren,” or whether a “person can be fired or refused to be hired for a reason that has absolutely nothing to do with religion?”

On May 11, the Supreme Court heard consolidated oral argument in a pair of cases that ask the Justices to determine whether the religion clauses found in the First Amendment bar civil courts from adjudicating employment discrimination claims that employees bring against their religious employers when those employees have allegedly “carried out important religious functions.”

The cases are Our Lady of Guadalupe School v. Morrissey-Berru (19-267) and St. James School v. Biel (19-348). Both petitions seek review of Ninth Circuit decisions addressing the First Amendment’s ministerial exception.

At St. James School. Below, in Biel, the fifth-grade teacher at a Catholic school (she taught all subjects, including religion) was diagnosed with breast cancer only six months after receiving a positive teaching evaluation. She told the school she needed to take time off for treatment and several weeks later, the school informed her that it would not renew her contract for the next academic year because her “classroom management” was “not strict” and that it was unfair to the students to have two different teachers during the school year. She filed an ADA suit asserting disability discrimination. The district court granted summary judgment to the school, finding that the First Amendment’s ministerial exception to generally applicable employment laws barred her claims.

However, on appeal, the Ninth Circuit reversed summary judgment. At most, only one of the four considerations mapped out in the Supreme Court’s Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC decision (which first recognized the ministerial exception) weighed in favor of the school. Moreover, no other federal appeals court has applied the First Amendment’s ministerial exception to a case that bears so little resemblance to Hosanna-Tabor. Declining the school’s invitation to be the first, the appellate panel explained that while the First Amendment “insulates a religious organization’s ‘selection of those who will personify its beliefs,’” it does not provide carte blanche to disregard antidiscrimination laws when it comes to other employees who do not serve a leadership role in the faith.

At Our Lady of Guadalupe School. In the unpublished Morrissey-Berru decision, the employee, also a teacher at a Catholic school, brought a claim under the ADEA. The Ninth Circuit reversed summary judgment in favor of the school and the district court’s conclusion that the employee was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, this employee’s formal title of “teacher” was secular. “Aside from taking a single course on the history of the Catholic church, [the employee] did not have any religious credential, training, or ministerial background,” wrote the appeals court, adding, she also “did not hold herself out to the public as a religious leader or minister.”

Citing to its Biel ruling, the appeals court also said that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.”

Did the Ninth Circuit “go rogue?” The same legal team represented both schools in their petitions for certiorari. The Biel petition asserts that “the lower courts applying the ministerial exception have, with remarkable consistency, focused on employees’ religious functions to determine their ministerial status.” In Hosanna-Tabor, Justices Alito and Kagan “identified this consistency as reflecting a ‘functional consensus’ among the courts,” according to the petition. Religious functions are not the only analytical consideration under that consensus, but they are the touchstone, the school argues.

“The Ninth Circuit, however, has decided to go its own way,” the Biel petition continues. “In this case and in Morrissey-Berru, separate panels of the Ninth Circuit concluded that important religious functions could never be enough, by themselves, to prove up an employee’s ministerial status.”

Petitioners’ argument

At oral argument, Eric C. Rassbach, representing the petitioners, drew a line in the sand: “If separation of church and state means anything at all, it must mean the government cannot interfere with the church’s decisions about who is authorized to teach its religion …. And at bottom, that is what these cases are about: who controls who teaches the faith to schoolchildren.”

Answering a question by Justice Ginsburg as to who among the religious schools’ employees are not ministers, Rassbach said “anyone who’s not performing important religious functions, so, for example, the janitor. … the same thing would be true of someone who, for example, is just doing the IT for the company or the school.”

However, in response to a question by Justice Breyer, he went on to argue far more broadly that the cases don’t involve just the employer and the employee: “There’s also a third ox that’s getting gored here, which is the—society’s interest in not controlling religious functions.”

Broadening the exception? Justice Sotomayor suggested that Rassbach was “asking for an exception to law that’s broader than the ministerial exception generally and broader than is necessary to protect the church.” She continued: “The two teachers at issue here are not claiming that they were fired because the school thought they were teaching religion wrong. One says she was fired because she came down with cancer and was fired for a medical condition. The other claims it was because of age. She had been there for many, many years and had been very acceptable to the school, and all of a sudden, she reaches a certain age and she’s fired.

“So, you’re asking for an exception to the Family and Medical Leave Act, to wage and hourly laws, to all sorts of laws, including breach of contract.”

Teaching “devotionally.” But Rassbach contended “they absolutely were doing much more than teaching about religion. They were teaching it devotionally, and they were—they were proselytizing.” And while he began to say that he wasn’t sure he agreed with the premise of her question, he was cut off by the Chief Justice moving on to the next Justice.

Justice Kagan went through a quick list of short hypotheticals, asking who and who would not qualify for the exception, and Rassbach answered, after which Justice Gorsuch lobbed an invitation: “You’re asking a secular court to make that judgment. And even when some deference is given to a religious organization in a qualified immunity sort of way or otherwise, you’re still asking us to make a judgment between who qualifies as a minister and who does not on the basis of our judgment that their activity with respect to a religion is de minimis.

“And I—I’m just wondering, does that pose some problems for you and for your clients in some of these cases?”

What happens if you win? Trying to pin the argument down further, Justice Kavanaugh asked, “are we going to have litigation over what particular students take out of particular coaches or particular teachers? I’m not sure how we do that if you were to win this case and then we go on to the next case.” To that, Rassbach replied that his limiting principle was that “the important religious functions are not just any religious exercise, but they’re sort of a subset of religious functions that the person’s performing as the agent of the religious community and that that’s, you know, the main part of their job.”

U.S. government as amicus

Arguing on behalf of the petitioners as amicus, Morgan Ratner for the Solicitor General laid out the government’s contention succinctly: “in most lower courts, an employee’s function has been central to the analysis. … The touchstone of the ministerial exception should be whether an employee performs important religious functions. That’s because function reflects the First Amendment interest at stake and because, critically, it’s more neutral among different religions.”

Don’t worry about the “outliers.” After Ratner avoided directly answering Justice Ginsburg’s pointed questions about being fired for needing cancer treatment, or for reporting a student’s claim of abuse by a priest or the principal’s gambling habit, she suggested that “the better approach is to continue to do what this Court did in Hosanna-Tabor and say we don’t need to decide those sort of outlier cases right now.”

In response to a question from Justice Breyer, Ratner concluded: “[O]nce you’ve made this decision that somebody is performing an important religious function, then this Court said in Hosanna-Tabor that getting into why they were dismissed misses the point because, at that point, the religious organization has to be capable of deciding who is going to minister to the faithful, who is going to fulfill that role.”

Respondents’ argument

Jeffrey L. Fisher, arguing for the respondents, began by stressing that “the first half of the argument has illustrated the myriad problems with the important religious function test that’s been proposed on the other side… in terms of consequences.” Instead, he said he would focus on a narrower argument, whether “these particular teachers should be considered ministers, even though they did not have to be Catholic to have their job, simply because their job included teaching religion.”

Contending the court should reject that argument, Fisher pointed out that it “would strip more than 300,000 lay teachers in religious schools across the country of basic employment law protections, and necessarily included in this number are teachers who teach so-called secular classes. … there’s no way to distinguish a teacher who teaches religion in a religious school from a teacher who teaches general curriculum, or a secular course infused with religion.”

Formalistic? The Chief Justice, suggesting non-pejoratively that the employees’ argument was “more formalistic,” was concerned that some religions are more hierarchical, relying on titles, while others were not, and that titles and descriptions are “pretty manipulable.” To that, Fisher reiterated that he was arguing that the Court “should adhere to the multi-factor framework that Hosanna-Tabor laid out.”

In response to a question from Justice Thomas, Fisher noted that “I wholeheartedly agree that free exercise protection is available in this case. And I want to make clear that any religious reason for firing these teachers or for otherwise regulating the teachers would be entitled to the highest free exercise protection.”

Stewardship of the congregation. “But what the other side needs to prove is that there’s an Establishment Clause violation in this case,” Fisher continued. “It requires being a leader in the church. It requires not just being a member but a—a person in who the stewardship of the congregation has been placed.”

Fisher expanded his argument in response to an invitation by Justice Ginsburg to discuss what she found “disturbing” about the case: “that the person can be fired or refused to be hired for a reason that has absolutely nothing to do with religion, like needing to take care of chemotherapy.” Fisher explained that “anytime a religious employer wants to hire and fire or take other employment actions for religious reasons, the statutes themselves let them do that. And if—and if for some reason even then the statute doesn’t give them what they want, they can raise the Free Exercise Clause.”

A question of immunity. “So the only place the ministerial exception really matters is in a case where the religion is not acting for religious reasons. … it is enough to serve the religions’ legitimate interest to say if you have a problem with how they’re teaching religion or how they’re otherwise upholding themselves in light of your faith, you can hire or fire them. But you can’t say we don’t care when you come in whether you’re of our religion, and we don’t care when we fire you about anything to do with religion, but we still get immunity. We think that’s a bridge too far.”

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