Bench Memos

Law & the Courts

Ninth Circuit Dissent: Don’t Gut the Ministerial Exception

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

In two recent cases, the Ninth Circuit delivered a blow to the “ministerial exception” enjoyed by religious institutions under the First Amendment and recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012). That case involved a teacher at a Lutheran school whose duties included teaching religion class and leading her students in prayer, and who challenged her dismissal by the church under the Americans with Disabilities Act (ADA). The Court unanimously rejected her claim, holding that the ministerial exception precludes the application of employment discrimination laws to questions involving “the employment relationship between a religious institution and its ministers.” Additionally, the government is not permitted to “contradict a church’s determination of who can act as its ministers.”

Two very similar cases in the Ninth Circuit involving teachers who sued Catholic schools after their contracts were not renewed reached the opposite outcome. Both Biel v. St. James School and Morrissey-Berru v. Our Lady of Guadalupe School involved fifth-grade teachers at Catholic elementary schools whose responsibilities included teaching religious instruction, leading their students in daily prayer, and whose employment contracts required them to incorporate Catholic teachings into their work. Biel, who sued under the ADA, was required to teach religion at least 200 minutes per week and to escort her students to school-wide monthly Mass. Morrissey-Berru, who sued under the Age Discrimination in Employment Act, taught a course on the history of the Catholic Church, was in charge of liturgy planning for a monthly Mass, and directed and produced a student performance during the school’s annual Easter celebration.

Two panels of the Ninth Circuit reversed district court opinions granting the schools summary judgment in the respective cases, concluding that under the “totality of the circumstances,” the teachers did not qualify for the ministerial exception. The Ninth Circuit denied a petition for an en banc rehearing in Biel, and nine judges dissented in an opinion written by Judge Ryan Nelson.

The court, Nelson observed, did not hold Biel to be a “minister” because her employment circumstances “were not a carbon copy of the plaintiff’s circumstances” in Hosanna-Tabor, a conclusion that clearly “departed from the plain direction of the Supreme Court.” Consider the similarity of the job of the teacher in the Supreme Court case: she had taught a variety of classes to kindergarten and fourth grade students, including religion class four days a week; led the students in daily prayer and devotional exercises; and attended a weekly school-wide chapel service, which she led herself about twice a year. She did have a distinctive formal title —“ called teacher” — that was lacking in the Catholic school context.

Justice Alito had noted in his Hosanna-Tabor concurrence, which was joined by Justice Kagan, the importance of function over nomenclature: The term “minister,” commonly used in Protestant denominations, “is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.” But the Ninth Circuit did not seem to grasp this, treating Hosanna-Tabor as if it set a legal floor for the exception to apply, which it did not. The appeals court “diverged from the function-focused approach” taken by other circuits and a number of state supreme courts and focused on other considerations, Nelson charged, “all of which relate to Biel’s title.”

The dissent extended its rebuke of the Ninth Circuit to Morrissey-Berru, which presented an “even stronger” case to apply the ministerial exception. “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally,” Nelson lamented. The court would have done better to follow Alito’s explicit extension of the ministerial exception “to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Nelson had been nominated to the Ninth Circuit by President Trump, as had Judges Mark Bennett, Bridget Bade, and Daniel Collins, who joined his dissent along with five judges who had been appointed by George W. Bush. The Becket Fund, which represents the Catholic schools in both cases, has filed a cert petition to the Supreme Court.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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