Yesterday, the Supreme Court in Our Lady of Guadalupe v. Morrissey-Berru made clear that the First Amendment forbids courts from interfering with the employment decisions of religious institutions about employees that perform significant religious functions, even if the employee doesn’t have the title “minister.”
The Supreme Court formally adopted the ministerial exception, which can be seen as implicit within the First Amendment’s protections, eight years ago in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, when the Court unanimously held that the First Amendment’s Religion Clauses forbid the government from contradicting “a church’s determination of who can act as its minister.” The Court referred to this ban as the “ministerial exception, but at the time, the Court did not clearly define “ministers.”
To the contrary, it expressly refused “to adopt a rigid formula” and instead provided a list of “considerations” for future cases. The enumerated Hosanna-Tabor considerations go beyond an employee’s official title to include, her religious training, the fact that she held herself out as a minister, and her job’s religious duties. Justices Alito and Kagan concurred in Hosanna-Tabor, arguing that a functional approach, which looks primarily to the role religious employees play, was better than the Court’s broad list of considerations.
The Court’s failure to clearly define the scope of the ministerial exception in Hosanna-Tabor gave rise to confusion in the lower courts. In Morrissey-Berru v. Our Lady of Guadalupe and its companion case, Biel v. St. James School, the Ninth Circuit rejected the Alito-Kagan functional approach and attempted to apply the very “rigid formula” that the Supreme Court had rejected. Other circuits followed the Alito-Kagan approach and gave greater weight to an employee’s function than to the other listed “considerations.”
Our Lady resolves this conflict. The Court gave much-needed guidance to courts around the country by recognizing that “[w]hen 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.”
In so holding, the majority recognized the importance to religious schools of teachers who teach religion and/or participate in religious observance. “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.” The Court then listed some “core” responsibilities of such teachers, including “educating young people in their faith, inculcating its teachings, and training them to live their faith.” The majority’s proper understanding of the central importance of a religious school’s teachers compelled its bottom line, namely that the Hosanna-Tabor exception applies to such teachers.
Justice Thomas, joined by Justice Gorsuch, concurred and reiterated his view—first articulated in Hosanna-Tabor—that secular courts should never second-guess a “religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’” In his view, such deference is necessary because civil courts are not qualified to answer the “inherently theological question” of what qualifies as a minister. Justice Thomas’ concern went further still, as he argued that courts risk judicial entanglement, a practice the First Amendment’s Religious Clauses forbid, just by asking the question. The majority acknowledged these fears, but stopped short of adopting them.
Two justices dissented. Justice Sotomayor, joined by Justice Ginsburg, criticized the majority for holding that the ministerial exception applied “even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.” She then accused the majority of turning the ministerial exception into a rubber stamp by “priz[ing] a functional importance that it appears to deem churches in the best position to explain.” This, she argued, would “permit religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.” Justice Thomas responded that the new approach did nothing of the kind, but rather heeded the First Amendment’s requirement to avoid wading into religious conflict.
In the end, a solid majority of seven justices recognized that, for purposes of the ministerial exception, “[w]hat matters is ... what an employee does.” The majority did not abandon the remaining Hosanna-Tabor considerations. Instead, it reasoned that the existence of those considerations in Hosanna-Tabor made that case “an especially easy one.” That is true. But after Our Lady, more cases are likely to be “especially easy” in the future.
To be sure, there will be disputes over the scope of yesterday’s ruling. For example, does it cover every teacher at a religious school, or only those that spend some portion of their time teaching religion or leading students in religious observances? To what extent does the exception cover employees who are not classroom teachers but who nonetheless play a significant role in carrying out the school’s religious mission?
Still, yesterday’s decision is a major step on the pathway toward full realization of religious schools’ First Amendment right to determine who may assist in the fulfillment of their religious missions.