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The Supreme Court will soon weigh in on who counts as a minister. Its answer could change religious freedom law forever

The Supreme Court will hear a case on hiring and firing decisions at religious schools, its final religion case of the current term, on Monday.

A man runs past the Supreme Court where the justices will hold arguments by telephone for the first time ever on Monday, May 4, 2020, in Washington.
Andrew Harnik, Associated Press

SALT LAKE CITY — The Supreme Court on Monday will hear its final religious freedom case of the current term. According to some legal scholars, it saved the most significant for last.

On its surface, Our Lady of Guadalupe School v. Morrissey-Berru, which was consolidated with St. James School v. Biel, seems to pose a basic question. The justices will decide whether two Catholic school teachers performed enough religious duties to count as ministers under anti-discrimination law.

If the answer is yes, the schools will be protected from the former teachers’ age and health-related discrimination claims. Courts aren’t allowed to weigh in on disputes between religious organizations and their ministers.

If the Supreme Court says the teachers are just teachers, the schools could face penalties. They could also be vulnerable to more employment discrimination lawsuits in the future.

To resolve the disputes, which both feature Catholic schools in California, the justices will have to decide just how much freedom religious organizations should have to hire and fire employees without government interference, as well as who should control the definition of minister moving forward.

Depending on how the Supreme Court answers these questions, the course of religious freedom law could change forever, said Robert Tuttle, a professor of law and religion at George Washington University.

“This and a couple other cases that will be decided in the next year or two will mark a watershed in the development of the law of the religion clauses,” he said.

The ministerial exception

Under civil rights law, churches and other religious employers have always been treated slightly differently than other businesses. Policymakers determined that religious freedom protections sometimes outweigh the government’s interest in addressing discrimination.

Employment discrimination law “says religious organizations are exempt from religious discrimination claims,” Tuttle said. In other words, they can’t get in trouble for making hiring or firing decisions based on someone’s faith.

Over the past five decades, courts have ruled repeatedly that the Constitution’s religion clauses require even broader protections for religious employers. Churches and other faith-based organizations were found to be exempt from any type of discrimination claim involving ministerial employees.

“If an employee is a minister, the inquiry ends there,” Tuttle said.

This legal standard is referred to as the ministerial exception, and it’s been in front of the Supreme Court once before.

In 2012, the justices unanimously ruled that a fourth-grade teacher at Hosanna-Tabor Evangelical Lutheran School who had been fired after a medical disability leave performed enough religious duties to count as a minister. She was, therefore, unable to sue the school for discrimination.

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs,” the majority opinion explained.

The justices based their decision on the First Amendment’s religion clauses, explaining that interfering with a religious group’s most significant hiring decisions would violate members’ ability to freely exercise their faith and would represent unlawful government control of religion.

The Supreme Court did not offer a concrete definition of who counts as a minister, but it did say the category includes far more than ordained pastors. The ruling instructs judges to consider factors like an employee’s title, training and job responsibilities in order to decide whether the ministerial exception applies.

“They gave some instructions for how to evaluate whether or not someone is a ministerial employee,” Tuttle said.

New conflict

The fact that the ministerial exception is back in front of the Supreme Court eight years later implies that the guidelines offered in Hosanna-Tabor aren’t as easy to follow as the justices hoped they might be.

Lower court judges have struggled to determine how many factors named in the 2012 ruling need to be present for the exception to apply.

In the new case, the employees alleged different types of discrimination. One claims she was fired in 2015 because of her age and the other, who has since passed away, said she was let go in 2014 because of a breast cancer diagnosis.

Neither employee had a religious title or described herself as a minister. Their schools didn’t require them to receive specialized religious training or even identify as Catholic.

For these reasons, the 9th U.S. Circuit Court of Appeals ruled in favor of the employees, deciding they had the freedom to sue their former employers for discrimination.

“Morrissey-Berru did have significant religious responsibilities as a teacher,” but that fact alone doesn’t make someone a minister, circuit court judges said in one of the rulings.

Many law and religion experts, including Tuttle, believe the 9th Circuit made the wrong decision. Being required to lead students in daily prayers, incorporate Catholic values into school lessons and take part in worship services is enough to trigger the ministerial exception, they said.

These teachers “were not only were required to incorporate Catholic teaching into all subjects, but also were evaluated on their ability to do so,” explained a brief from 15 legal scholars filed with the Supreme Court in support of the Catholic schools.

Others support the circuit court’s ruling and argue that it would be dangerous for the ministerial exception to be applied too broadly.

The government needs to retain the right to investigate allegations of discriminations in most instances, said Nicholas Little, vice president and general counsel for the Center for Inquiry, a nonprofit organization that advocates against special treatment for religious groups in public policy and filed a brief in favor of the employees.

“I would not support getting rid of the ministerial exception entirely, but I would pull it back so it was truly leadership positions,” he said.

What will happen?

Most legal experts believe the schools will win the case, in part because the Supreme Court’s 2012 Hosanna-Tabor ruling was unanimous.

The employees involved in the present disputes appear to have done just as much, if not more, religious instruction than the teacher in the earlier case, so it would be odd for the justices to treat them differently, Tuttle said.

“The 9th Circuit took a way too narrow reading of Hosanna-Tabor,” he said.

The bigger mystery, then, is how the justices will justify their decision.

The Supreme Court could use the free exercise clause, the establishment clause or both to explain how to apply the ministerial exception, Tuttle said. Their approach will determine whether religious organizations or the government has more control over who counts as a minister in the future.

“What many folks involved in the case are asking for is for the government to let religious organizations decide which employees carry out important religious functions,” he said.

A ruling primarily based on the First Amendment’s free exercise clause would grant this request and likely make religious employers less vulnerable to employment discrimination claims.

Religiously affiliated colleges and universities would have an easier time arguing that professors should count as ministers and faith-based nonprofits might successfully assert that the ministerial exception applies to their entire staff.

“When religious organizations say that an employee is important to their religious mission, we would need to defer to them,” Tuttle said.

He’s among the legal scholars who believe the Supreme Court’s eventual ruling should be based on the establishment clause, instead. Such a ruling would ensure that, in future ministerial exception cases, the focus is on whether the government is equipped to judge a worker’s job performance, not a faith group’s potentially biased understanding of an employee’s importance, Tuttle said.

“Can the government judge whether someone has gotten good evaluations as a groundskeeper? Yes. As an administrative assistant? Yes. As a preacher? Well, no,” he said. “Because the state is secular, it cannot judge the relationship between an individual and a community and the transcendent or eternal.”

The justices might all agree on who should win in the current cases, but they almost certainly won’t agree on what should determine the scope of the ministerial exception moving forward, Tuttle said.

That’s why few legal experts are predicting another unanimous ruling.

“It’s possible, but I don’t think it’s likely,” Tuttle said.

The Supreme Court’s decision is expected sometime this summer.