The Supreme Court ruled Wednesday, July 8, that religious leaders still get to control teaching at religious schools. The ruling was 7-2, and subjects certain teachers to the so-called “ministerial exception” in employment law. The exception permits the hiring and firing of those with religious or “ministerial” duties without regard to many employment laws. Justices Elena Kagan and Stephen Breyer joined Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh in signing Justice Samuel Alito’s opinion of the Court. Justice Sonia Sotomayor wrote a dissent signed by Justice Ruth Bader Ginsburg, and Justice Thomas wrote a concurring opinion joined by Justice Gorsuch.
This case, Our Lady of Guadalupe School v. Morrissey-Berruis, is about two teachers who sued the Archdiocese of Los Angeles for wrongful termination. One was an age claim and another a disability claim. The Archdiocese’s legal response included the defense that due to the ministerial exception, the teachers’ claims need not even be investigated because those teachers were covered under the exception. If the court agreed, then the improper dismissal claim would be over before it began. If not, then courts would be judging church school employment claims.
The last time the Supreme Court examined what ministerial exception meant was in 2012. That’s when they issued a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission. Justice Alito led his opinion in Our Lady of Guadalupe School with a discussion of the previous case’s ruling, which held that:
“The First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Adopting the so-called “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees, the Court found relevant Perich’s title as a ‘Minister of Religion, Commissioned,’ her educational training, and her responsibility to teach religion and participate with students in religious activities.”
Alito went on for about 20 pages discussing the meaning of the term minister, the specific job duties of the teachers, and much more, which resulted in the majority’s conclusion: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” That’s the test in place now to judge whether an employee is subject to the ministerial exception.
Justice Sotomayor wrote a near-perfect, textbook opinion demonstrating how she would love to legislate from the bench. Justice Ginsburg signed on to her dissent, which revealed her own desire to make public policy by accusing the majority of doing so. Sotomayor began with an appeal to hearts, not law: “Two employers fired their employees allegedly because one had breast cancer and the other was elderly.” She went on to say the majority opinion shields disability and age-discrimination claims because:
“In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were ‘ministers’ of the Catholic faith and thus could be fired for any reason, whether religious or non-religious, benign or bigoted, without legal recourse.”
We know she supports cancer patients and the elderly, but what about the religious education of children? When religious employers dismiss someone, they may cloak bad reasons, like age or disability, in the exception granted, but what is the alternative? Justice Thomas addresses the issue head-on in his concurring opinion.
Thomas and Gorsuch Together Again
Justice Gorsuch signed on to Justice Thomas’ concurrence, which presents a simple and powerful legal claim. “I write separately, however, to reiterate my view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’” Thomas says that “judges lack the requisite ‘understanding and appreciation of the role played by every person who performs a particular role in every religious tradition.’”
Without calling his colleagues hypocrites, he notes how sensitive the court is to calling activities religious when it involves disfavoring those institutions, such as with school funding or prayer. Justice Thomas argues, “What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.” He wrote a similar concurrence in 2012, but was alone then. Now two justices favor expanding the First Amendment protections recognized for religion.
Read more from Scott D. Cosenza.