A Fourth Circuit panel with two liberal judges issued a sweeping ruling today against the ACLU and in favor of religious liberty in Billard v. Charlotte Catholic High School. But the panel majority avoided delivering the ACLU the even bigger loss that should be coming its way soon.
The ACLU represents Lonnie Billard, a substitute teacher at a Catholic high school in North Carolina who lost his job after he announced he planned to marry his same-sex partner. His lawsuit relies on the Supreme Court’s decision in Bostock v. Clayton County (2020), which held that Title VII’s ban on sex discrimination encompasses a ban on sexual orientation and gender identity discrimination, and which all but invited a wave of lawsuits against religious institutions (as well as other employers). Billard sued the school for sex discrimination under Title VII, and the district court granted summary judgment in his favor.
A Fourth Circuit panel heard oral argument in the case last September. Judge Pamela Harris, a very liberal Obama appointee, openly acknowledged that the Supreme Court was unlikely to agree with the district court:
I do understand that many people would find [the facts] quite sympathetic and probably be of the view that the Supreme Court is going to think that you can’t make a Catholic school retain this teacher. [Oral argument at 42:11-23]
Recognizing that the panel was inclined to rule against him, Billard’s ACLU lawyer spelled out the ground on which he would prefer to lose:
If we have to lose, I’d rather lose on the ministerial exemption than on a different issue…. I would very much not want to lose on Title VII. That would be something I would want to lose the least on. [Oral argument at 40:37-41:01]
This background helps explain Harris’s majority opinion, which may be the broadest application of the ministerial exception by any federal appellate court. It also helps explain the unusual path that Harris forged to get there.
In the district court, the Catholic high school waived the defense of the ministerial exemption. But Harris determines that she has discretionary authority to relieve the school of its waiver and that she should do so. The ministerial exception, she explains, is “grounded … in constitutional structure”: it “does not protect the church alone; it also confines the state and its civil courts to their proper roles.” Thus:
Given a choice between enforcing a waiver and thus exceeding our authority, on the one hand, and forgiving a waiver and staying in our proper lane, on the other, we choose the latter.
Harris then departs from the “general rule” that the court should not decide a constitutional question if it can instead dispose of a case on statutory grounds. Invoking “judicial restraint,” she observes that the “breadth and novelty of [the school’s] statutory defenses makes [sic] this the unusual case in which we decide less by starting and finishing with a constitutional defense.”
Harris proceeds to offer a robust account of the ministerial exception and to explain why it applies to Billard. According to Harris:
Billard falls in precisely the category of people whose ministerial status [the Supreme Court’s 2020 ruling in] Our Lady of Guadalupe seems most likely to affect: educators in religious schools who primarily teach secular subjects.
Harris observes that Billard “integrated” faith into his classes, began class with prayer, and attended Mass with his students. “All of this,” she stated, “indicates the performance of ‘vital religious duties.’” It did not matter that Billard was a substitute teacher who primarily taught English and drama:
Billard may have been teaching Romeo and Juliet, but he was doing so after consultation with religious teachers to ensure that he was teaching through a faith-based lens.
This is a strong formulation of the ministerial exception—confirming that it covers essentially all teachers at religious schools and acts as a form of immunity, requiring secular courts to “stay out” of these disputes.
Staying in her “proper lane” and practicing “judicial restraint” have not typically been high priorities for Harris. What exactly, you might wonder, was Harris trying to avoid?
Section 702 of Title VII (codified at 42 U.S.C. §2000e-1(a)) states that Title VII “shall not apply … to a religious [organization] with respect to the employment of individuals of a particular religion.” As Seventh Circuit judge Frank Easterbrook recently explained in his concurring opinion in a similar case, Starkey v. Roman Catholic Archdiocese of Indianapolis (2022):
Any temptation to limit this exception to authorizing the employment of co-religionists, and not any other form of religious selectivity, is squelched by the definitional clause in §2000e(j), which tells us that religion includes “all aspects of religious observance and practice, as well as belief”….
A straightforward reading of §2000e–1(a), coupled with §2000e(j), shows that the Diocese was entitled to fire Starkey without regard to any of the substantive rules in Title VII. It is undisputed that the Roman Catholic Church deems same-sex marriages improper on doctrinal grounds and that avoiding such marriages is a kind of religious observance…. Section 702(a) permits a religious employer to require the staff to abide by religious rules. A religious school is entitled to limit its staff to people who will be role models by living the life prescribed by the faith, which is part of “religion” as §2000e(j) defines that word.
Seventh Circuit judge Michael Brennan weighed in similarly in his concurrence in Fitzgerald v. Roncalli High School (2023).
Judge Robert King (a Clinton appointee), in his opinion concurring in the judgment in Billard, agrees with Easterbrook that a “straightforward reading” of section 702 “bars Billard’s discrimination claim.”
As her comments at oral argument make crystal clear, Harris wanted to avoid ruling for the Catholic school on this broader ground, which would apply against all employees, not just those who fell within the ministerial exception. But she also recognized that a ruling in favor of Billard would invite review by the Supreme Court—review that could lead to the very ruling on the basis of section 702 that she wanted to avoid. So she instead wrote what may be the single broadest application of the ministerial exception to date.
Bostock may have given the ACLU hope that it could harass religious institutions into compliance with its view of sexuality. But even with a very favorable Fourth Circuit panel, it instead got one liberal judge authoring a very broad ministerial-exception ruling and another liberal judge opining that it should lose on the broader ground of Title VII’s religious exemption.
Perhaps this defeat will be enough to convince the ACLU that these lawsuits are losers and that the Constitution and Title VII properly protect the freedom of religious groups to hire those who agree with their religious principles. If not, I suppose the ACLU can always make even broader precedent by pressing this case, or another similar one, all the way to the Supreme Court.