//  7/8/20  //  Commentary

First established as constitutionally mandated in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the ministerial exception was greatly expanded today by the Supreme Court’s decision in Our Lady of the Guadalupe School v. Morrissey-Berru and its companion case, St. James School v. Biel. The bottom line is that thousands upon thousands of schoolteachers at religious schools – teachers who are mostly women – have been stripped of protection against anti-discrimination laws. Once again, religious rights trump women’s right to equality.

In Hosanna-Tabor, the Supreme Court held that the ministerial exception precludes “ministerial employees” from bringing antidiscrimination claims against their religious employers. Notably, the religious employer does not need to give a religious reason why they may have discriminated on the basis of race, or sex, or age, or disability. The right is absolute; a court may not second-guess the employer’s decision. 

The premise of the ministerial exception is that the government should not interfere in a church’s choice of its religious leaders—people who perform important religious functions. It violates the employer’s Free Exercise rights if the government imposes upon them a religious leader they do not want. It violates the Establishment Clause because the government should not become entangled in deciding theological questions such as who is qualified to serve as a minister.

The main consequence is that religious employers have absolute immunity from anti-discrimination suits brought by their “ministerial employees.” In other words, ministerial employees are not protected by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act & other civil rights vis-à-vis their religious employer.

The issue presented in Our Lady of Guadalupe is who qualifies as a “minister”? Plainly, members of the clergy do. But who else? This question was left unanswered by Hosanna Tabor.  In Hosanna Tabor, all of the Justices agreed that the schoolteacher in the case, Cheryl Perich, qualified as a ministerial employee. Ms. Perich’s title was “commissioned minister” and she had a religious training. She also held herself out as to be minister by taking advantage of a tax benefit made available to clergy only. Last, she performed important religious functions by teaching religious class four times a week and leading the class in daily prayers.

In Our Lady of the Guadalupe, the Supreme Court has made it much easier for a religious employer to classify an employee as a “ministerial employee.” Agnes Morrissey-Berru and Kristin Biel, the two teachers in today’s consolidated cases, were lay teachers without any kind of religious title. The Court held that it did not matter. Neither had the significant religious training that Perich had. The Court held it did not matter.  Neither held themselves out to be ministers, or took advantage of tax benefits made available exclusively for members of the clergy. The Court notably ignored this fact. Instead, the Court held that all that matters was the duties the teachers performed: “What matters, at bottom, is what an employee does.”

Unfortunately for school teachers at religious schools, if any part of their responsibilities include religious education, they risk becoming a “minister”: “[T]he exception should include ‘any employee’ who . . . serves as a messenger or teacher of its faith.” It may be a very small part of their workload. Both Ms. Morrissey-Berru and Ms. Biel were elementary school teachers who every subject to their students. Most of their days were spent teaching English, mathematics, science, geography, and social studies. But because religion was one of the many courses they taught, that was enough to transform them into “ministers.” Never mind that the school did not even require that their lay teachers share the faith of the school.  Once these women were charged with teaching religion, they lost their protection against discrimination.

It is not altogether clear whether teaching a formal religious class is a necessary condition for being considered a minister. The Court stated that plaintiffs were “not only were obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with their faith.” Thus, it’s possible that the next religious employer will claim that school teachers who teach wholly solely secular classes are “ministers” simply because they are expected to serve as role models for the faith. Indeed, the majority signals that courts should defer to religious employers’ characterizations of their employees because the country’s religious diversity makes it difficult to fully understand every employee’s role. In the majority’s view, “a religious institution institution’s explanation of the role of such employees in the life of the religion in question is important.” Why the employer’s characterization is important and not the employees is not explained. In dissent, Justice Sotomayor sharply observed that, “one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp.”

Also left unclear from today’s decision is whether the ministerial exception will be confined to employment discrimination claims. For example, does it cover wage and hour claims? Contract disputes? Occupational safety claims?  The Court’s expansive language does not preclude such broad coverage: “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 teacher threatens the school’s independence in a way that the First Amendment does not allow.”

Ultimately, teachers like Kristen Biel, who was fired after she informed her employer that she had breast cancer, and Agnes Morrissey-Berru, who argued she was let go due to age discrimination, will never have their day in court. Because they engaged in a religiously important function, they have been converted into “ministers” and stripped of protection against discrimination.

In closing, it bears observing that a religious organization that refuses to ordain women has successfully claimed that the women teaching elementary school classes are ministers. They are not ministers when it comes to the title, respect, and power, but they are ministers when it comes to losing their basic civil rights protections.

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