Will the Supreme Court Grant Religious Schools Carte Blanche to Ignore Anti-Discrimination Laws in Hiring and Firing?

(This article was published hours before the Supreme Court sided with the schools. The decision is described in an addendum at the end of the article.)

By John Allan Knight 

The Supreme Court will soon issue a ruling with the potential to significantly affect the relationship between religiously affiliated schools and their employees. The case is Our Lady of Guadalupe School v. Morrissey-Berru, and it involves the so-called “ministerial exception,” a First Amendment doctrine that exempts religious institutions from anti-discrimination laws in hiring and firing employees deemed ministers. 

Early in the history of the U.S., the Supreme Court interpreted the First Amendment’s Free Exercise clause as guaranteeing religious organizations the right to control their own internal affairs, especially including the selection of their religious leaders. Eight years ago, in Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the Court explicitly recognized that this right requires a “ministerial exception” to anti-discrimination laws. Under the ministerial exception, when a religiously affiliated organization hires or fires a person legally deemed to be a “minister,” this cannot be challenged in court irrespective of whether it would be otherwise illegal under anti-discrimination laws. 

Hosanna-Tabor Evangelical Lutheran Church and School employed two kinds of teachers, those whom it calls contract teachers and others it considers “called” in a spiritual sense. Cheryl Perich, the plaintiff in that case, was one of these called teachers. In order to be eligible to become a called teacher, she had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. She was also required to obtain the endorsement of her local synod district and pass an oral examination by a faculty committee at a Lutheran College. 

When Hosanna-Tabor extended a call to Perich, she was given a “diploma of vocation,” granting her the title, “Minister of Religion, Commissioned.” She was asked to perform her office “according to the Word of God and the confessional Standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” After her commissioning, the congregation periodically reviewed her “skills of ministry” and committed to providing her with “continuing education as a professional person in the ministry of the Gospel.” 

Perich accepted the formal call to service and claimed a housing allowance on her taxes, a provision available only to employees earning their compensation “in the exercise of ministry.” After her termination, in a form she submitted to the synod, Perich stated, “I feel that God is leading me to serve in the teaching ministry again. … I am anxious to be in the teaching ministry again.” 

In terms of her daily responsibilities, Perich taught a religion class four days a week and led her students in prayer three times a day. Once a week, she took them to chapel and about twice a year led the chapel service, choosing the liturgy, selecting the hymns, and delivering a short sermon based on biblical passages. During her last year of teaching, Perich also led her fourth-grade students in brief devotional exercises each morning. 

In June 2004, Perich became ill, was hospitalized, and was ultimately diagnosed with narcolepsy. She took a leave of absence for the following school year, but in January 2005 she told the school that she would be cleared to return to teaching in February. Hosanna-Tabor had decided, however, that her health would not permit her return, and had hired a replacement to teach her classes. The school then told her it would be best if she resigned. A conflict between Perich and the school ensued, and she threatened to sue, alleging that the school’s refusal to retain her was based on her illness and thus violated the Americans with Disabilities Act (ADA). When she tried to return to school, she was fired and told that she was being let go because of her threat to sue. Perich filed a lawsuit with the EEOC, arguing that the school’s retaliation violated the ADA. Hosanna-Tabor responded that Perich was a minister under the ministerial exception and that the school was therefore exempt from any obligations under the ADA. 

The Supreme Court agreed with Hosanna-Tabor that Perich’s claim was barred by the ministerial exception. The Court did not issue a formula or test for deciding when a person should be considered a minister for purposes of the ministerial exception. Instead, the Court held that the exception covered her, given all the circumstances of her employment. 

Our Lady of Guadalupe is a consolidated case in which two teachers have brought wrongful termination lawsuits against two Catholic Schools. The first, Kristen Biel, taught fifth graders at St. James School, and at the end of her first full year she learned that she had breast cancer. She told the school that she would need to undergo surgery and chemotherapy and that this treatment would require her to take time off. Shortly after receiving this information, the school told Biel that her contract would not be renewed.

The second teacher, Agnes Morrissey-Berru, taught fifth and sixth grade students for sixteen years at Our Lady of Guadalupe School, following a twenty-year career as a copywriter and advertising salesperson for the Los Angeles Times. In 2014, when she was in her sixties, the school’s principal expressed dissatisfaction with her classroom instruction and asked her if she wanted to retire. When she said no, the principal changed her status to part-time and did not renew her contract the following year. 

Both teachers sued their respective schools. Biel alleged that her termination violated the ADA, and Morrisey-Berru argued that her termination violated the Age Discrimination in Employment Act (ADEA). In both cases, the trial court held that the cases were barred by the ministerial exception, and in both cases, the Ninth Circuit Court of Appeals reversed, holding that the trial courts erred in concluding that the teachers were ministers. The schools appealed to the Supreme Court, and their decision is expected this month. 

What makes Our Lady of Guadalupe important is that the teachers had none of the accoutrements of commissioning or markers of being called to the ministry that the plaintiff in Hosanna-Tabor did. As they argue in their brief, the school did not require its teachers to be Catholic or to have any training or education in religion or in teaching Catholicism, and neither had any such training, degrees, or experience in teaching Catholicism. The schools regarded their teachers as lay employees. 

In addition, neither teacher considered herself a minister nor held herself out as one. Although they taught religion, it was only one of numerous subjects, the remainder of which were secular. Biel accompanied her students to weekly Mass but did not lead any part of it or participate in distributing the Eucharist. Though she prayed alongside her students, Biel states that she did not lead them in prayer, and did not lead students, the school, or the community in any other religious rituals or practices. Morrissey-Berru states that she performed sporadic duties in connection with the students’ prayer-related activities. In response, the schools argue that the purpose of teaching religion in Catholic schools is to transmit the Catholic faith to the next generation. Thus, they argue, teaching Catholicism — in one case five days a week, and in the other 200 minutes a week — means that teaching Catholicism made the teachers ministers for purposes of the ministerial exception.  

If the Court sides with the school in Our Lady of Guadalupe and holds that the ministerial exception applies, there will be few teachers at religiously affiliated schools to which the exception will not apply. It will have important implications for every religiously affiliated school in the United States, including seminaries, whose faculty typically includes both lay and ordained members alike. If the Court decides in favor of the school, that lay/ordained distinction is likely to be irrelevant for purposes of the ministerial exception, even for those with tenure. More specifically, tenured faculty member typically can be fired only for cause (e.g., negligence, incompetence, sexual harassment, fraud, criminal conduct, etc.) or financial exigency. A decision in favor of the school is likely to mean that, at least for most instructors at seminaries and other religiously affiliated schools, the courts will not question the school’s determination that there was cause for the firing, no matter how unsupported the determination. And that in turn would mean that, at seminaries and other religiously affiliated schools, tenure would be only an honorific, with no legally enforceable increase in job security. 

ADDENDUM:

Answer: Yes, the Court did grant carte blanche to religious schools in hiring and firing teachers. On Wednesday, July 8, 2020, in a 7-2 ruling, with Justices Ginsberg and Sotomayor dissenting, the Court held that the teachers were “ministers” for purposes of the ministerial exception and that their lawsuits against the schools were therefore barred by the First Amendment. Despite the differences from the teacher in Hosanna-Tabor in terms of training, commissioning, leading worship, etc., the Court held that their core responsibilities were essentially the same. And those core responsibilities included teaching the Catholic faith to Catholic children. In the Court’s view, it was not decisive that that teaching religion was only one out of five or six classes that the teachers taught, that one of the teachers was not a practicing Catholic, that their contracts simply called them “teachers,” or that the employee benefits guide they received were specifically for “lay employees.” More important to the Court was the fact that the schools described the teachers’ responsibilities as playing a vital role in carrying out the church’s mission. The Court gave significant deference to the religious institution’s description of the role of its employees in the life of the religion. That deference was so extensive, in the view of Justice Sotomayor, that it “threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring [or firing] process.” The Court’s decision makes it possible for religious institutions to insulate themselves from any and all discrimination lawsuits simply by describing employees’ roles as important to carrying out its religious mission

John Allan Knight, J.D., Ph.D., formerly a practicing lawyer, is associate professor of religious studies at Marist College, where he teaches Religion and the U.S. Constitution.