What the Supreme Court ministerial exception ruling could mean for LGBT employment lawsuits

Washington D.C., Jul 8, 2020 / 04:59 pm (CNA).- The Supreme Court’s ruling today on ministerial exception should encourage Catholic schools expecting teachers to live out Church doctrine on matters of sexual morality, two religious liberty lawyers suggested.

“There’s a lot of public pressure right now on Catholic schools, and on Catholic charities and the Church as a whole, to give up their teaching on marriage and human sexuality,” said John Bursch, Senior Counsel and Vice President of Appellate Advocacy at Alliance Defending Freedom.

He told CNA he hopes today’s ruling will embolden the Church – and particularly Catholic schools – to expect their communities to live in accordance with Church teaching.

“This should give them a degree of confidence they maybe didn’t have before, that they will have legal protection when they do that,” Bursch said.

In a 7-2 decision on Wednesday, the Supreme Court ruled that two Catholic school teachers in California are covered by the legal doctrine of “ministerial exception,” which prohibits government interference in religious organizations’ hiring and firing decisions regarding ministers.

The case, Our Lady of Guadalupe School v. Morrissey-Berru, involved two teachers in California Catholic schools whose contracts were not renewed. In separate cases combined by the Supreme Court, the teachers alleged that their dismissals were based on disability and age, not poor performance. The schools claimed they were exempt from employment discrimination laws under the principle of “ministerial exception.”

At the heart of the case was a question over what constituted a “minister.” In the 2012 Hosanna-Tabor v. EEOC decision, the Supreme Court unanimously upheld ministerial exception in the case of a teacher at a Lutheran school who was commissioned and given the title of “minister.” In today’s ruling, the justices determined that ministerial exception also applied to the Catholic school teachers in question. They noted that even through the teachers were not given the formal title of “minister” or the same level of formal training, the essence of their job was the same as in the Hosanna-Tabor case – to transmit the faith to students.

Adele Keim, an attorney with the religious freedom legal group Becket, said the court’s decision reinforced the idea that “government should not be in the business of telling religious schools who is qualified to teach the faith to their students.”

Keim, who worked on the case, told CNA this is a “common-sense principle” rooted in the First Amendment, which helps to ensure a healthy separation of church and state.

For decades, she said, courts have recognized that Title VII employment discrimination law does not apply in certain cases involving religious institutions.

This principle is important in cases of sexual morality. Last month, the Supreme Court ruled in Bostock v. Clayton County that employers cannot fire employees on the grounds of sexual orientation or gender identity.

However, Keim noted that the majority ruling in Bostock gave a nod to religious freedom, acknowledging that there are a special set of legal doctrines that operate in the case of religious organizations, and explicitly mentioning ministerial exception as one of them.

“There’s a protected sphere that gives religious organizations independence in deciding who’s going to carry out core religious functions. And so Title VII doesn’t come in there,” she said.

“If you can show that the employee is carrying out important religious functions, then that’s an area where the state just has to stay out.”

In several high-profile cases in recent years, teachers at Catholic schools who have entered civil same-sex marriages have been fired.

Bursch said today’s ruling could protect schools from lawsuits in these situations, provided they could show that the teachers in question were expected to transmit the faith to students.

“If the teacher is considered a minister at that school, as the Catholic teachers were in the two schools that the court decided today, then Title VII would not apply, no matter what the claim is,” he said. “The ministerial exception simply says that the federal government can’t be involved in regulating appointment law when it comes to religious institutions and their ministers. So the Bostock decision would not apply.”

Non-teacher employees would be similarly evaluated, with courts looking at their job responsibilities to determine whether the role is ministerial in nature. For example, a school janitor who is only present in the building outside of normal school hours and is not responsible for transmitting the faith would likely not be considered ministerial in nature, he said.

In one case in Indianapolis last year, two guidance counselors were dismissed from a local Catholic school for entering civil same-sex marriages, and a social worker then lost her job after publicly defending them.

Bursch said employment decisions such as these would be evaluated based on what the expectations of the employees are, and what job responsibilities they have.

For a guidance counselor, courts may consider questions such as, “Do they have any kind of religious or theological education or training? Is it expected that they’re going to transmit principles of the Catholic faith to students as they work through issues? Are they going to encourage students to consider religious vocations, such as being Catholic priests or being nuns?”

“The more of those types of things you have, the more likely it is that the court would consider the counselor a minister,” Bursch said.

“Each [case] will be a facts and circumstances examination of how much that person is expected to help carry on the faith to others. And if there’s a lot of that, they’re almost certainly a minister. If there’s none of that, then they almost certainly would not be,” he added.

The same principles apply to other Catholic organizations as well, he said. For example, a Catholic Charities social worker who is instructed to avoid religious conversations in his or her work with foster families would likely not be considered a minister. In contrast, a social worker who is instructed to spread the Gospel, and to encourage Mass attendance, prayer, and Catholic schools is more likely to be considered a minister.

“It would all depend on what the organization expects of that person in their job responsibilities,” Bursch stressed.

He also commented on the morality clauses added into teaching contracts in some Catholic dioceses, indicating that teachers accept and agree to publicly abide by Church teaching.

“Even before Our Lady of Guadalupe, they should feel pretty good about those clauses because an employment relationship is at-will,” he said. “[T]he courts have long recognized that wholly apart from the ministerial exception, a religious organization has the ability to hire individuals who share that organization’s faith beliefs. But I think having Our Lady of Guadalupe in place should help them feel even better about those types of clauses.”

Keim agreed that today’s ruling is reassuring for religious schools who ask teachers to abide by basic moral tenets.

“I think the Supreme Court has been very clear,” she said. “Two cases in eight years that have said resoundingly that ‘educating and forming students in the Catholic faith are vital religious duties’…If someone’s engaged in that process, the court has spoken twice and spoken very loudly, 9-0 and 7-2, those are areas where the state cannot be in the business of picking religion teachers.”