Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).
In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.
Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012). These teachers do not, however, have titles associated with professed religious persons or functions.
Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference. Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).
Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination. The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment. Both responding employers stated that their decisions were bawsed on employee performance.
The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions. An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption. Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.
The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption. Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.
A rigid formula for characterizing employment as religious is inapt. “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.” (Slip Op. at 26-27.)
Justices Thomas and Gorsuch concur. Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.
Justices Sotomayor and Ginsburg dissent. The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions. Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate. The ministerial exception is judge made law. Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse. It is to be preferred to make constitutional determinations on a case by case, holistic, basis. The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.
Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus. Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority. Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.
Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception. Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.