In Our Lady of Guadalupe School v. Morrissey-Berru (consolidated with St. James School v. Biel), the Supreme Court extended the ministerial exception to cover elementary school teachers with responsibilities for instructing and inculcating their students in the school’s faith. In an opinion by Justice Alito, seven Justices reaffirmed that the ministerial exception rests on both the Free Exercise Clause and the Establishment Clause. The dissenters (Justice Sotomayor, joined by Justice Ginsburg) took no issue with that foundation. Instead, they dissented on the ground that the teachers in question had insufficient ministerial status, training, and duties to fit under the umbrella of “minister” covered by the exception.
Our Lady of Guadalupe School is a direct outgrowth of the Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor (2012), the Court held that the Establishment Clause and the Free Exercise Clause, taken together, precluded application of employment discrimination laws to the relationship between a religious school and one of its teachers. In that case, the elementary school teacher (Cheryl Perich) had the religious training and status of a “called” teacher, and engaged in religious instruction as part of her duties. Progressive commentators, emphasizing the danger of the ministerial exception to employees’ rights, tended to be highly critical of the Court’s treatment of Ms. Perich’s claims of discrimination and retaliation.
On the other side of the spectrum, many who approved of the decision emphasized the freedom of religious entities from government regulation, and applauded what they saw as a victory for a broad theory of church autonomy. The same group also believed that Hosanna-Tabor undermined the doctrine of Employment Division v. Smith, which had ruled out constitutionally mandatory religious exemptions from generally applicable laws.
The unanimity in Hosanna-Tabor was a puzzle to most of these commentators. Could it be that Justices Ginsburg, Kagan, and Sotomayor were so insensitive to employees’ rights that they could align with Chief Justice Roberts and others in this case? Was it possible that all nine Justices were ready to sign off on a broad doctrine of church autonomy and to reject the teachings of Smith?
To us, the unanimity in Hosanna-Tabor was an entirely explicable mystery. The decision rested on a long-standing Religion Clause norm – courts are constitutionally incompetent to resolve “exclusively ecclesiastical questions.” Whether a particular person is fit for ministry in a particular religious organization is such a question. Seen in this light, Hosanna Tabor was not revolutionary in any way, and it did not in any respect repudiate Employment Division v. Smith, which had cited with approval analogous older decisions about church property and personnel. Our account of Hosanna Tabor also explains why certain sexual harassment claims can be brought by ministers against their employers.
What remained in the wake of Hosanna-Tabor, however, were 1) which positions qualified for the legal label of ministry; and 2) the related question of whether the religious institution or the state had ultimate authority to determine that a position was so qualified. We argued that to qualify as a position in ministry, the job must include substantial responsibility for communicating the faith. We explained further that courts should retain independent power to decide those questions, without deference to religious employers, who had incentives to expand the reach of the exception.
Justice Alito’s opinion tracks this understanding quite precisely. He explains that “the Religion Clauses protect the right of churches and other religious institutions to decide matters “‘of faith and doctrine’” without government intrusion. . . . State interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute . . . an establishment of religion. . . . The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what we have termed “‘matters of church government.’” This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.” (Slip op. at 10-11).
All of that is foundational to the ministerial exception. The issue in Morrissey-Berru and Biel was whether elementary school teachers played such key roles. Hosanna-Tabor had been an easy case, because Cheryl Perich had a title, training, and responsibilities that led all nine Justices to conclude that her position was one of ministry. Today’s decisions were more difficult, because neither Agnes Morrissey-Berru nor the late Kristen Biel had a ministerial title or theological training. But, as the Court explained, different faiths have very different traditions with respect to titles and training of persons engaged in teaching the faith. (Slip op. 18-21). “What matters,” Justice Alito wrote, “is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”
As Justice Alito analyzed the duties of both Morrissey-Berru and Biel, they were “responsible for providing instruction in all subjects, including religion. [T]hey were . . . entrusted most directly with the responsibility of educating their students in the faith. . . . [T]hey [were] obligated to provide instruction about the Catholic faith, [and] also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities.” (Slip op. at 21-22).
Justice Sotomayor’s dissent, joined by Justice Ginsburg, seemed primarily concerned with bounding the ministerial exception, so that it would not broadly swallow anti-discrimination laws with respect to religious employers. “By analyzing objective and easily discernable markers like titles, training, and public-facing conduct,” they wrote, “Hosanna-Tabor charted a way to separate leaders who “personify” a church’s “beliefs” or who “minister to the faithful” from individuals who may simply relay religious tenets. . . . This balanced First Amendment concerns of state-church entanglement while avoiding an overbroad carve-out from employment protections.” (Sotomayor, dissenting, slip op. at 7-8). Because Ms. Morrissey-Berru and the late Ms. Biel lacked a ministerial title and specific religious training, the dissenters argued that extending the ministerial exception to them went too far.
We think reasonable people can differ about the precise quantity of religious instructional or communicative duties that will trigger the ministerial exception. These two cases were at the borderline, in ways that Hosanna-Tabor was not. In the future, lower courts will have to measure the quality and quantity of religious instructional duties assigned to any employee for whom an employer asserts the ministerial exception. Most elementary school teachers with responsibility for combined religious and secular teaching will fall under the exception; high school teachers in secular subjects will not. But in all cases, the opinion in Morrissey-Berru makes clear that courts must carefully evaluate the duties of the employee for whom the exemption is claimed.
In a concurring opinion, Justices Thomas and Gorsuch argued for an approach to the ministerial exception very different from the Court’s. “[T]he Religion Clauses,” they asserted, “require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is “ministerial.” . . . This deference is necessary because . . . judges lack the requisite “understanding and appreciation of the role played by every person who performs a particular role in every religious tradition”. . . . What qualifies as “ministerial” is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.” Had the Court accepted this line of argument, religious employers would effectively have complete power to designate which employees are “ministers.” The designation might extend to bus drivers, custodians, teachers of completely secular subjects in high school, and others with no responsibility whatsoever to offer instruction in the faith. All of them would lose the benefits of anti-discrimination law, including the protection against LGBT discrimination recently affirmed in Bostock v. Clayton County.
That the Court majority did not follow the Thomas-Gorsuch path is of profound consequence to the future of Religion Clause principles. Their broad view of the autonomy of religious institutions would give such institutions grounds for ignoring a wide variety of legal norms. In light of the Court’s recent moves, in Espinoza v. Montana Department of Revenue and otherwise, to eliminate constitutional barriers to government funding of religious entities, this approach would let such entities both have and eat their cake. They would be free to claim equal access to public funds without bearing equal responsibilities to follow generally applicable conditions on receipt of those funds. Coupled with Espinoza, the ministerial exception already moves the Court an uncomfortable distance toward that posture of funding equality and regulatory privilege.
Recognizing the jurisprudential foundation of the ministerial exception is essential to maintaining its boundaries. We will soon learn more about whether the Court will remain true to that foundation. In Fulton v. City of Philadelphia, on the docket for next Term, Catholic Social Services seeks a Free Exercise Clause exemption from a duty to not discriminate against same sex married couples in a program of public funding for organizations that evaluate prospective foster parents. Without question, all faith communities may insist on their own criteria for who is entitled to the blessings and sacraments of marriage. But the duty of nondiscrimination imposed by the City of Philadelphia does not apply to that exclusively ecclesiastical question. Rather, the duty applies to the outward looking function of evaluating those who seek to become foster parents.
Had the Court majority in Morrissey-Berru bought into the Gorsuch-Thomas approach, it would have signaled a dangerous constitutional turn toward presumptive religious autonomy from general law. The far narrower approach adopted in Morrissey-Berru, focused on both the exclusively ecclesiastical question of fitness for ministry and the independence of judicial review of exemption claims, gives no boost to the Free Exercise assertions being made in Fulton. Despite legitimate controversy over the application of the ministerial exception, Morrissey-Berru is a reassuring nod toward the continuity of a principle long rooted in the American tradition of church-state separation.