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The Supreme Court just handed a big win to religious employers

Justices ruled 7-2 that the First Amendment prevents the government from interfering with many types of hiring and firing decisions made by religious institutions.

The west face of the Supreme Court of the United States is seen in this general view. Monday, March 11, 2019, in Washington, D.C.
Mark Tenally, Associated Press

SALT LAKE CITY — The Supreme Court promised future support for religious freedom last month when it expanded nondiscrimination protections for LGBTQ workers. On Wednesday, justices made good on their word.

In a 7-2 decision, the court shielded religious employers from a variety of employment discrimination claims, ruling that the government can’t interfere with a faith group’s efforts to find the workers who will best support their religious missions.

Religious organizations function best when they can make key hiring and firing decisions on their own terms, wrote Justice Samuel Alito in the majority opinion.

“The (Constitution’s) religion clauses protect the right of churches and other religious institutions to decide matters of faith and doctrine without government intrusion,” he said.

Leaders of faith-based businesses, school and other organizations celebrated the decision, arguing that it would ensure they can live and operate according to their beliefs.

But LGBTQ rights advocates and others condemned the ruling, questioning why the court has made it harder for gay and transgender employees to access the rights justices just said they are guaranteed.

“While the Supreme Court has made it clear that it is against the law to fire someone for being LGBTQ, today they made it easier for religiously affiliated employers to discriminate —including against LGBTQ people,” said James Esseks, who directs the ACLU’s LGBT and HIV Project, in a statement released Wednesday.

Case background

The case, Our Lady of Guadalupe School v. Morrissey-Berru, which was consolidated with St. James School v. Biel, centered on the ministerial exception, a legal standard that prevents the government from interfering in disputes between faith groups and their ministers.

Although several courts have upheld the concept of the exception, legal experts clash over how to apply it. People generally agree that an employee doesn’t have to be ordained to count as a minister, but consensus falls apart after that.

The Supreme Court last addressed this issue in a 2012 case involving a fourth-grade teacher who was fired after an extended medical leave.

The justices unanimously ruled that the teacher qualified as a ministerial employee, since she had received some religious training, led spiritual activities and had a religious title. The teacher, therefore, was unable to sue for employment 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.

In that 2012 case, justices offered general guidelines for evaluating an employee’s ministerial status, rather than a clear formula. Their approach led to confusion in the lower courts and helps explain why the court heard another ministerial exception case this year.

This term’s cases featured teachers at two different Catholic schools in California who each claimed to have been wrongfully terminated. Although neither employee had a religious title or specialized training, they did take part in a variety of religious activities as part of their work.

The teachers’ employers argued the court should focus on their job duties and rule that they fall under the ministerial exception. However, some justices worried that such an approach would require courts to make a subjective judgment or give too much power to schools and other organizations facing discrimination claims.

“Is the court supposed to determine what is a significant religious function and what is an insignificant one?” asked Chief Justice John Roberts during oral arguments.

The majority opinion does not offer clear guidance for how to assess the religious significance of an employee’s job duties moving forward. Instead, it focuses on the particulars of the current case and determines that both teachers were clearly expected to perform “vital religious duties.”

In the future, judges should continue to follow the general guidelines provided in this ruling and in the 2012 case, Alito wrote, noting that adopting a “rigid formula” for who counts as a minister could cause more harm than it solves.

He also encouraged judges to pay attention to how religious employers describe their workers’ duties, since they have a deeper understanding of their own practices and beliefs.

“In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition,” the majority opinion explained.

Reactions to the ruling

In her dissenting opinion, Justice Sonia Sotomayor took issue with this nod to the expertise of religious employers, arguing that it gives too much power to potential abusers.

The court is sacrificing its ability to root out various types of employment discrimination and ensure that teachers at religious schools and other workers are treated well, she said.

The majority ruling “risks allowing employers to decide for themselves whether discrimination is actionable,” Sotomayor wrote in her dissent, which was joined by Justice Ruth Bader Ginsburg.

LGBTQ rights advocates shared similar concerns in their statements on the ruling, arguing that the decision puts gay and transgender employees, as well as other workers, at risk.

“Today, the Supreme Court opened a veritable Pandora’s Box that threatens the continued employment and financial security of thousands of teachers at religiously affiliated schools,” said Jennifer C. Pizer, who serves as legal counsel and law and policy director for Lambda Legal.

A variety of religious freedom advocates described the court’s decision quite differently, stating that the Constitution’s strong protections for people of faith demanded such a result.

“This ruling is welcome news for Americans of all faiths. By allowing religious institutions —without interference from government — to decide for themselves who will teach their faith and how that faith will be taught, America preserves the fundamental right of religious freedom,” said Kay C. James, the president of the Heritage Foundation, in a statement.

Russell Moore, who leads the Ethics and Religious Liberty Commission of the Southern Baptist Convention, applauded the justices’ willingness to limit government intrusion.

“If a religious organization cannot recruit leaders who agree with the beliefs and practices of those organizations, then there can be no true religious freedom. The court recognized that today,” he said in a statement released Wednesday.

Taken together, the court’s two recent rulings on how to apply employment discrimination law imply that justices are interested in finding a way to please both of these camps.

This term, justices looked for ways to balance LGBTQ rights and religious freedom protections, and they’ll likely continue to embrace that approach in the forward, said Tim Schultz, who is president of the 1st Amendment Partnership, to the Deseret News last month.

“We very well could be headed for what I would call a ‘Fairness for All’ future,” he said, referring to calls to expand LGBTQ and religious rights at the same time.