Bench Memos

Law & the Courts

The Court Again Protects Religious Liberty

The Supreme Court in Washington, D.C., May 3, 2020. (Will Dunham/Reuters)

Yesterday was a great day for religious liberty at the Supreme Court. In two companion cases about the ministerial exception, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, a 7–2 Court held that it cannot second-guess a religious school’s determination as to who should teach religion.

The ministerial exception derives from the First Amendment. The Court applied it in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) to bar an employment discrimination claim by a teacher at a Lutheran school. In that case, the teacher’s responsibilities included teaching religion and participating in school religious activities. “Minister of Religion” was part of her title.

But what about other denominations that do not make the same use of the term “minister?” Yesterday’s decision involved two cases of fifth-grade teachers at Catholic schools with employment discrimination claims. They taught religion among other subjects, prayed with their students, and participated in liturgical activities.

The Court’s opinion, written by Justice Alito, affirmed that such activity should remain within the discretion of churches, free from government interference. “The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Alito observed. The Catholic school teachers’ claims were subject to the same exemption that applied in Hosanna-Tabor.

Significantly, the Court’s conclusion did not depend on whether the context involves clergy or a title that includes the word “minister.” Consider the “impermissible discrimination” that would otherwise result:

Nuns are not the same as Protestant ministers. A brief submitted by Jewish organizations makes the point that “Judaism has many ‘ministers,’” that is, “the term ‘minister’ encompasses an extensive breadth of religious functionaries in Judaism.” For Muslims, “an inquiry into whether imams or other leaders bear a title equivalent to ‘minister’ can present a troubling choice between denying a central pillar of Islam—i.e., the equality of all believers—and risking loss of ministerial exception protections. [citations omitted]

“What matters, at bottom, is what an employee does,” Alito concluded. He had made this same point in a concurring opinion in Hosanna-Tabor, and now it is the opinion of the Court. Justice Thomas, who joined the Court’s opinion, added a concurrence to maintain that “courts should defer to a religious organization’s sincere determination that a position is ‘ministerial.’” Perhaps a future Court will explicitly incorporate that proposition as well. This one came close to doing so.

Our Lady of Guadalupe School is a poignant reminder of how the Court of the last 15 years has been rock solid on religious-liberty issues. In fact, it would not be an overstatement to say the Court has never been more protective of religious freedom in its history.

Justices Ginsburg and Sotomayor were the lone dissenters, but they would have been happy to undermine protections for schools run by religious institutions. Considering that those justices were part of Hosanna-Tabor’s unanimous decision, their dissent in Our Lady of Guadalupe suggests that if they had their way, the standard that would apply to religious schools would vary based upon their denomination. As if to prove the point, Sotomayor’s dissenting opinion took an unworkable “holistic” approach and then applied that to reach a different conclusion with respect to the Catholic school teachers than she had reached in the Lutheran school case.

The dissent is a striking reminder of the need for judges who are protective of the religious liberty guaranteed by the Constitution.

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