Courthouse Steps Decision: Our Lady of Guadalupe School v. Morrissey-Berru

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call.  This afternoon's topic is titled "Courthouse Steps Decision: Our Lady of Guadalupe School v. Morrissey-Berru." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Daniel Blomberg, a Senior Counsel for the Becket Fund for Religious Liberty. After our speaker gives his opening remarks, we will go to audience Q&A.  Thank you all for sharing with us today. Daniel, the floor is yours.

 

Daniel Blomberg:  Thank you very much. It's a pleasure to be here. As we just said, my name is Daniel Blomberg. I'm a Senior Counsel at the Becket Fund for Religious Liberty, and Becket is counsel to the two schools in today's cases—Our Lady of Guadalupe School and The St. James School—in the opinions just handed down by the U.S. Supreme Court.

 

      My firm, the Becket Fund for Religious Liberty, was also counsel in the previous ministerial exception case to reach the U.S. Supreme Court, the Hosanna-Tabor decision.

 

      Today's two decisions, the combined decisions in Our Lady and St. James, are very important decisions and very helpful in further establishing what the unanimous court did eight years ago in Hosanna-Tabor.

 

      What I'm going to do over the next half hour or so: I'm going to give a very brief overview of some of the takeaways of today's decision. Then, I'm going to walk through a bit of history regarding the doctrinal issue that the Court decided under the First Amendment today, which is a doctrine known as the ministerial exception.

 

Then, I'm going to walk through the case that the Court decided today to give you some background on that and talk about the Court's ruling, including what made it distinct from the Hosanna-Tabor case; why it took it and why it was resolving it.

 

And then, I'm going to discuss a couple of key takeaways from the decision on what it does to further establish and solidify the First Amendment's protections for religious groups.

 

      First, a brief overview of the takeaways from today's decision. The doctrine that's at issue is the First Amendment's Religion Clauses, protection for the internal autonomy of a religious group and their ability to select their leaders and their teachers and people who embody and express the faith within the context of the religious group.

 

      Today's decision regarded two teachers that had sued their schools, their Catholic schools, over the schools' decision not to renew their contracts. The Court, by a 7-2 margin, ruled in favor of the schools and found that the First Amendment protected the schools' decision about selecting who to serve in a teaching capacity at the schools.

 

      This is, one, a huge win for all faith groups. The defendants here were Catholic schools, but as the Court recognized today, there's a rich diversity of religious education in this country, and it specifically identified the many different faith traditions—Catholics, Protestants, Jews, Muslims, Adventists, Mormons, and others—that have a strong emphasis on religious education and training up the next generation. So the protections that the Court recognized today apply to all of those faith groups in really profound ways.

 

      It's also a very important decision because it protects from government entanglement in core religious decisions. One way to think of this is a very healthy separation of church and state in a case that really goes to the heartland of what the Religion Clauses, working together, are trying to do.

 

      The other thing that's really important coming out of today's decision is that it shows us that the form of the doctrine follows the function of the doctrine. That is, what really matters, what the courts really are trying to get at, is protecting the ability of religious groups to perpetuate their existence; to perpetuate their message and what they're trying to speak to their members and to people to choose to be a part of their associations.

 

      So it's not so much about titles and other formalistic considerations as it is about what exactly is being done. It protects that core expression of religious belief and identity.

 

      The final point that's really important is that this is a 7-2 win. That is, you have seven justices in the majority saying that the schools should win in this context. And that really speaks to the breadth of support for religious liberty in our society. In fact, while it's a 7-2 decision on the core dispute that came before the court, it's actually a 9-0 decision when it comes to issues like Hosanna-Tabor. All nine justices agree that the Hosanna-Tabor case was rightly decided.

 

      Now, two of the justices have some disagreement about what Hosanna-Tabor means, but all of them affirm it as strong precedent just as they did eight years ago when Hosanna-Tabor was decided.

 

      Next, all nine justices agree that, while they disagree on this particular case—two of them disagree with seven of them on this particular case—agree that the ministerial exception covers termination for religious reasons. So if a religious group decides to hire or fire someone for a religious reason, and that someone holds an important religious role within the ministry, then all the justices would agree that that situation should be covered by the ministerial exception.

 

      One of the big takeaways is that this case is marked by wide agreement on some of the very fundamental issues. So that's a brief overview of what we got out of the Our Lady decision today.

 

Let me step back a little bit, well, actually step back a lot, and talk about how we got here; where we're coming from. You have to go way back in history. You have to go back to Magna Carta when you're talking about the ministerial exception because it really is rooted deeply in our traditions, and both things that we wanted to keep as a society, things we wanted to protect, and things that we were trying to avoid.

 

      For instance, before the time of the Founding, there were requirements in law in Britain that individuals could face lifetime imprisonment, ministers could face lifetime imprisonment, for preaching anything but what was in the official prayer book, the Book of Common Prayer. I don't remember what the first and second violations were, but the third violation—if you were teaching something as a minster other than what was in the Book of Common Prayer—you could face lifetime imprisonment. And you were forbidden to say anything, and I quote—this was in the decision today—say anything in "play[s,] song[s,] r[h]ymes, or by other open [w]ord[s]" that would be violation of the Book of Common Prayer."

 

      So you had very strong state control of religious belief and religious expression, and that really kind of followed us across the pond as our nation was getting started. Professor Michael McConnell noted that in early colonial Virginia, ministers were politically appointed by the Crown. The religious faithful that were a part of those congregations often were less than excited about that because, as you might imagine, politically appointed ministers were "less than zealous in their spiritual responsibilities and less than irreproachable in their personal morals." That's a quote from Professor McConnell's seminal work on Establishment and Disestablishment at the Founding.

 

      So there was a lot of control both over religious beliefs and over the ministers that were responsible for expressing those beliefs. At the time of the Founding, when we were put together and ratified the First Amendment, we wanted to get away from all that. We wanted to put the power to select ministers and express religious belief in the hands of religious congregations and not in the hands of politicians. So we have the First Amendment's Religion Clauses.

 

      In both sides -- there's been some cases that have said, "Yeah, there's a little bit of tension between what the Establishment Clause is trying to do and what the Free Exercise Clause is trying to do, and they kind of bump up against each other sometimes." But that's not the case here because here, when it comes to selecting the ministers who express the faith, the Free Exercise Clause says religious groups have to be free to select those individuals because that's how they identify and form themselves around common beliefs and select somebody who can express those beliefs.

 

      The Free Exercise Clause protects the right of a religious group to select their ministers. On the other side, the Establishment Clause bars the government getting involved in that decision. So both sides of this are working together. On one side, the Free Exercise protects that ability to make the choice; on the other side, the Establishment Clause says the government has to stay out of it.

 

      So that was what the Establishment and Free Exercise Clause -- a big part of what they were meant to do. It was really -- the kind of a heartland function was protecting this ability of religious groups to be able to make their own decisions on the people who really expressed their faith and lead their faith.

 

      Courts didn't have a lot of occasion to start applying this in the kind of situation that we saw today where you have an employment non-discrimination lawsuit that's filed where someone says, "Hey, you discriminated against me on some illegal ground," and then that goes to court and both sides fight about whether or not that actually occurred.

 

      In the mid-1900s when, with the advent of federal employment discrimination laws, issues arose where you had individuals who are leading congregations—ministers, pastors, priests, and others—suing their churches under these laws.

 

Since 1972, courts have recognized, fairly uniformly—every federal court of appeals have considered it—recognized that there's the First Amendment's twin values of Free Exercise and Establishment required a ministerial exception, required an exception to the employment discrimination laws, and required avoiding interference in that employment relationship between a minister and that minister's ministry—between the church and the pastor, the church and the priest, or something like that.

 

      For several decades, over 30 years, the lower courts all uniformly recognized the existence of this ministerial exception and applied it fairly uniformly to these different types of cases.

 

Well, in 2012, the U.S. Supreme Court had its first opportunity to review one of these cases in the Hosanna-Tabor Evangelical Church and School v. EEOC case. There, you had all nine members of the U.S. Supreme Court agree that there was a ministerial exception, and it did apply to the particular plaintiff in that case, an individual who taught at a Lutheran school and there were certain considerations regarding their job that led the Court to conclude that this person was a minister and thus fit within the ministerial exception and couldn't sue her own ministry to punish them for their employment decision.

 

      There were four considerations that the Court looked at in that case, the Hosanna-Tabor case. One was that the minister there had a formal title. She was called a minister. Two, she had pretty significant formal training that prepared her for religious vocation. Three, she had a religious tax status; she had claimed the housing exemption on her tax status. And then, finally, she engaged in important religious functions. So, the Court said, "Looking at all those considerations, it's very clear that she is a minister and so we don't have to decide if you need all four of those, if you need something less than that; it's clear that those four together mean that she was a minister and she can't sue the school over its decision to terminate her."

 

      You had two important concurrences in that case. One by Justice Thomas, who said we should go further and we should make it clear that you can't second guess a religious group's sincere determination of who a minister because otherwise you're going to get involved in internal religious questions and you have courts deciding these sort of issues.

 

And then, two, you had a concurrence by Justices Alito and Kagan saying that the way you determine who a minister is is primarily looking at the kinds of functions they perform. So yeah, you've got the four considerations—the title, the training, the tax status, and the function—but Justice Alito and Kagan said, generally speaking, there is a functional consensus among the lower courts that the way you determine who is a minister is by looking at what they do, and the other things confirm that, but they're not necessary to it.

 

In fact, there would be significant problems if you made any of them necessary. If you made title, for instance, necessary because then you would start imposing religious criteria on religious groups.

 

So, the courts would be saying, "Well, if this individual isn't titled a minister or they don't have a specific kind of religious term by their name, then they can't be a minister." So that would be kind of imposing a religious test by the federal courts and be a very significant Establishment Clause problem and Free Exercise problem. So while the title can confirm it, it can't be necessary to it, was what Justices Alito and Kagan were saying.

 

So that's kind of the background for these particular cases that were decided by the U.S. Supreme Court today. In the eight years since the Hosanna-Tabor decision, a number of courts across the country in the Second, Third, Fifth, Sixth, Seventh Circuits had all followed Hosanna-Tabor, applied it to various types of ministerial exception cases and basically come out to a result that was very similar to what you saw Justices Alito and Kagan identifying.

 

They said there are those four considerations, but none of them, none of the courts, have said you have to have all four. You just need to show at least one of them. You need to show at least function and then maybe one or two other ones. So you had a couple of cases that came down that were based on function plus title, and you had a couple that were based on function plus training, but you didn't have any that said you need all four; you got to have all four considerations to show that someone really is a minister.

 

Also, interestingly enough, you didn't have any that said you got to have title and tax status are enough by themselves. That case just hadn't come up, but it just -- no courts had said anything like that.

 

And then, in walks the Ninth Circuit. The Ninth Circuit decides in the two cases that went to the U.S. Supreme Court, the Our Lady case and the St. James case, that you do need all four; that those four were really kind of a rigid checklist. That you got to show that they do have a title, they do have the training, they do have the tax status, and they have the function.

 

And so, in these particular cases -- these were very similar to the Hosanna-Tabor case in that you had a grade school teacher who taught several subjects, and one of those subjects was the faith of the particular school. In Hosanna-Tabor, it was a Lutheran school, and in these two cases, they were both Catholic schools in the Archdiocese of Los Angeles.

 

The religious teaching function was very similar as well. In fact, if anything, there was more religious function for both teachers in the cases in the Our Lady and St. James cases where these teachers were teaching the faith in really very significant ways, 200 minutes a week.

 

You had more religious instructional content taking place from these teachers than the students that they taught would receive from their parish priests. On a weekly basis, they were getting more religious training from these teachers than they would from the parish priest. And the kinds of things they were learning were significant religious doctrine.

 

Under the curriculum, for instance, in the Our Lady case, the teacher there was expected to teach the students to learn and express the belief that Jesus is the son of God and the Word made flesh; and that they were supposed to learn how to identify the ways the church carries on the mission of Jesus; and to locate and read and understand stories from the Bible, and to know the names, meanings, signs, and symbols of each of the seven sacraments of the Catholic Church, and that they also need to be able to explain doctrinal concepts such as the communion of the saints.

 

So they had significant religious responsibilities. They did a lot of other things, too. They would pray with their student several times a day, and they would take their students to Mass. In the Our Lady case, the teacher there would direct and produce an annual passion play. They tested their students in the religious training to make sure they understood it, and they trained them in things like learning how to recite the Apostle's Creed and the Nicene Creed. She would help them learn how to celebrate the sacraments.

 

So it was very significant religious responsibilities that were being taught every day of the week to these students, and that's why the parents sent them there. These were Catholic schools, and they were very clear that the mission of the school was to inculcate the Catholic faith into the students that came.

 

But one thing that was different—or three things, actually, that were kind of different in this case as opposed to the Hosanna-Tabor case is the teachers didn't have the title "minister." They had the title "teacher." And the teachers didn't have the kind of training that the teacher in the Hosanna-Tabor case did. They didn't have years of seminary-type training to prepare them for the educational roles that they had here. And they also didn't have the tax status that the teacher in the Hosanna-Tabor case did, either. They didn't apply for or receive the housing allowance.

 

Three of the considerations that were at issue in the Hosanna-Tabor case arguably weren't at issue here. So, what you really had was a case that presented the kind of situation that Justices Alito and Kagan were talking about, at least at a certain level in one way of looking at it.

 

There were other things to consider that show that yeah, they actually did have religious titles in certain respects and in certain ways and things like that, but the clearest comparator between the two sets of cases, the Hosanna-Tabor case and the ones that the Supreme Court decided today, were the religious functions; the very important and very significant religious functions that these teachers were performing. The Ninth Circuit said that just wasn't enough; that they needed to be able to show those other types of considerations, and that because they didn't show those other considerations, the religious stuff here wasn't sufficient.

 

The court also put in some language about how a lot of this training came out of a book. There was a curriculum book, and the teachers were teaching out of this book, and they're like "Ah, that's just kind of rote. You're just teaching straight out of this book, and so it's not really that significant, that important."

 

Well, that ended up causing two decisions out of the Ninth Circuit: one, the Our Lady case, which actually came second. The Biel case, the St. James case, came first in December 2019, and the Becket Fund got involved at that point, and we filed a petition for en banc rehearing asking the whole Ninth Circuit to reconsider the decision that had just come down.

 

While that petition was pending, another panel of the Ninth Circuit decided the Our Lady case, and they followed the decision from St. James, and they said, "Yep, this is right. Because you're not showing anything but function, and even though you did have very -- and the court said that the plaintiff here had very significant religious function, that's not enough. You've got to be able to show the other considerations as well."

 

In summer of last year, the nine members of the Ninth Circuit said, "That's wrong. We would vote to grant rehearing, and we would explain why our panel decision here was wrong," but that wasn't enough to command the majority of the court, and so en banc rehearing was denied.

 

About a month later, the Seventh Circuit issued a decision in the Sterlinkski case that said, "Yeah, this is desperately wrong. The fundamental touchstone here is function—what it is that people are doing for the religious ministries—and not these kinds of formalistic considerations about title and tax status and training and things like that."

 

So then, the cases went before the U.S. Supreme Court. The Supreme Court granted cert, and the briefing finished up over the spring. Argument was actually scheduled for April 1, interestingly enough, and then, of course, COVID hit, and we got bumped back until early May. So oral argument was performed back on May 11, and then, we just got our decision today.

 

That takes us all the way up to the present. What the Court was telling us today were a few different things. One, really, as I mentioned earlier, form follows function. The core consideration, the core ruling, here is summed up in this paragraph, and it says, "What matters, at bottom, is what an employee does." And then, the Court goes on. It says, "And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school."

 

While the Court didn't go beyond that question and didn't answer other types of teachers and those types of situations, it says where you have a teacher who's responsible for educating, informing students in the faith, judicial intervention has to stop. That has to be the end of it because any more interference ends up becoming an entanglement with religion, and it ends up requiring judges to second guess religious judgments, and you end up with, at its core, an interference with the religious beliefs of the organization.

 

Really, the core understanding, the thing that drives what's going on with the ministerial exception, is the idea that personnel is policy and so allowing the government to get involved in the selection or termination of ministers ultimately means allowing the government to get involved in the expression and content of religious belief, which is a big, big no-no.

 

The ministerial exception exists to preserve a church's independent authority in matters of preaching and teaching and expressing the faith and performing rituals of the faith. At the core of what the ministerial exception is trying to do is protecting the autonomy of the church to decide for itself what it is and how it gets to express itself and conceptualize itself.

 

That's what the Court did today. It went back and it looked carefully at the Ninth Circuit's bases for its holding and it said, "Listen. In the Hosanna-Tabor decision, we were really clear that we were not adopting a rigid test. That's exactly what we said: 'We're not adopting a rigid test.' And so, you got it wrong when you came behind us and assumed that what we were doing was, in fact, adopting a four-factor test; instead of four considerations, really treating them as four factors and that all those boxes need to be checked." The Court said that was just fundamentally incorrect.

 

The Court also said that the respondents here would've wanted to go further. They actually wanted to make it a four-factor test, and a four-factor test that started primarily with the three formalistic criteria. Like, you only considered this fundamental aspect of function—what an employee does, what exactly is being performed for the religious group—you only get there after you look and see and confirm yes, they have a religious title; yes, they have religious training; and yes, they have some sort of religious legal status, like a tax status or something like that.

 

So unless you can show those things, you don't even get to the question of the kind of religious stuff that they're doing. The Court points out that that raises a host of problems not least among them that you'll then end up in a situation where you could have somebody who -- certain faith groups don't have formal religious titles for their ministers. They don't call their ministers "ministers."

 

Certain faith groups actually think that's theologically wrong. There's a certain equality of all believers, for instance, in the Islamic faith, so there's not this expectation that you're going to have, for instance, ordained clergy within those other faith groups, often minority faith groups.

 

So the ones that would be hurt by this test would often be the ones with whom the country and people in the judiciary and the government would be least familiar with and least comfortable with; those minorities faith groups. In fact, interestingly, there haven't been that many ministerial exception cases following the 2012 decision in Hosanna-Tabor, but several of them have been with minority faith groups, including three, for instance, with Jewish faith groups.

 

These are the kinds of groups that are often most protected by the ministerial exception because they're the ones that the government would be, and the courts would be, least familiar with. So drawing this broad circle around their ability to select their teachers and leaders is particularly useful for faith groups that would otherwise suffer disproportionately. So the Court identified that problem with the respondent's theory of the case and how they were trying to press it.

 

The Court also rejected the respondent's argument that, the teacher's argument, that you had to show that someone was a co-religionist in order for them to be a minister. The argument here was that to fit within the ministerial exception, to be a voice of the faith, you had to be a member of the faith. There's a certain facial appeal to that, a certain surface appeal to it, but the Court pointed out that the devil's in the details, so to speak, and as soon as you start digging in, you see well, how is a court supposed to decide whether or not someone is a member in good standing of a particular faith group? And why is a faith group limited in that way?

 

If a faith group decides that they want to put their, for instance, a seminary, for instance, wants to put its Old Testament teaching class in the hands of an Orthodox Jew who might have significant scholarly understanding of those. As long as they can ask that individual—this Christian seminary—as long as they can ask that individual to teach in a way that's consistent with the faith, there's no reason from an expressive perspective why they couldn’t ask that individual, allow that individual to teach the Torah and the common books of the Christian and Jewish, Old Testament and Torah.

 

So the Court rejected that, saying, "How will we, as a Court, supposed to determine whether or not, for instance, a Reformed Jew and an Orthodox Jew are sufficiently the same kind of Jew? Or a Southern Baptist and an American Baptist? How is it the Court is supposed to make those determinations of what a co-religionist is?"

 

There was also a related argument that maybe one of the teachers here had been a Catholic, but she was no longer a Catholic, so the ministerial exception shouldn't apply to her. And the Court just kind of threw up its hands at that and said, "Well, how are we supposed to determine, how is the Court supposed to determine, what a good Catholic is?"

 

Really, why would we put that kind of burden on a religious group for them to have to go snooping behind their teachers and their leaders to ferret out whether or not they're sufficiently up to speed on the faith? So the Court rejected those arguments because of the kind of religious entanglement and interference that they would necessarily entail.

 

That's kind of the thrust of the holding. There was a concurrence by Justice Thomas, again, and joined this time by Justice Gorsuch, and he reiterated his view. He joined the majority opinion in full and reiterated his view that courts should be very careful not to second guess the sincere religious determinations of who was a minister.

 

Then, there was a dissent by Justices Sotomayor and Ginsburg that basically said that, "Yeah, we agree that Hosanna-Tabor was right, and yeah, we agree that if there had been a termination here for a religious reason that that could be permissible; that could be within the ministerial exception, at least a conceptual level. But here, these teachers weren't ministers because they didn't check the boxes." So the dissent largely followed the line of reasoning that the Ninth Circuit had.

 

Two things I want to kind of tease out and emphasize for purposes of what's important about today's ruling. There were the ones that we talked about earlier: very important for all faith groups. The Court went out of its way, spent a couple pages, talking about all the different faith groups that are part of our nation's rich diversity of religious education and how they were all going to be protected under the decision there; the protection from government entanglement and things like that.

 

But two things that are, I think, worth emphasizing. One is that it really does clarify the confusion that was existing somewhat in the lower courts about the role of function in determining whether or not someone is a minister. The Court didn't say that function is the test. They didn't say, "If someone has a religious function, that's the end of the test." They just said that function can be enough in an appropriate case.

 

Other considerations, such as title and training, would certainly be relevant and certainly something that courts could consider to further confirm an employee's ministerial status. Nothing about today's decision says that that can't happen any longer, but what it does say is it's enough if someone is doing the kinds of very important religious things that these teachers were doing—teaching the faith to the next generation and trusted with expressing and modeling and inculcating the faith in the next generation—then that was enough, and that was enough for the ministerial exception to apply.

 

Even with the courts that had applied the ministerial exception, there had been some confusion on that point. The Sixth Circuit had said, "Hey, we found two considerations in our case. We're not sure if one consideration would be enough, but we think two is enough."

 

And the Second Circuit did basically the same thing in a couple of the cases that it had ruled on where it said, "Yeah, we don't have all four; we don't think we need all four, but we're not quite sure. So, we'll go through and analyze all four and do an analysis—Do they have the title? Do they have the training?—before coming to our conclusion."

 

So I think this is going to make the analysis a lot cleaner, and it's going to bring it a lot more neatly within the purpose of the ministerial exception, which is to protect the autonomy and the independence of a religious group in identifying its identity and expressing its identity. So there's that clarification that took place.

 

It's not any broader than Hosanna-Tabor because Hosanna-Tabor never said the four considerations were necessary; it clarifies Hosanna-Tabor and makes it very clear that where function is of a nature similar to this one, then that's enough.

 

That being said, there was another move that the Court made that was, I think, very important, and it's going to be very helpful doctrinally in understanding these and other cases. And that is, the Court put the ministerial exception within the larger constellation of the church autonomy doctrine. That is, the understanding that churches and religious groups, synagogues, mosques, and other kinds of parachurch organizations, they have independence, fundamental independence, in matters of faith and doctrine and in matters that are closely linked to their internal government. All of those things, of course, are tied up when it comes to the selection of ministers.

 

The Court spent some time really teasing this out and making sure it was clear that this isn't some kind of standalone employment discriminations for the doctrine, but rather a fundamental First Amendment recognition in the Religion Clauses that churches and other institutions have core autonomy in deciding matters of faith and doctrine without any government intrusion.

 

The Court went so far as to say that state interference in that sphere of autonomy would "obviously violate the free exercise of religion, and any attempt by the government to dictate or even influence such matters of faith and doctrine would constitute one of the central attributes in establishment of religion."

 

Again, both sides of the Religion Clauses working together, the Free Exercise Clause and the Establishment Clause, working together to protect this core sphere of independence for religious groups to establish their identity and to control how they express their faith to their members and to the next generation.

 

Those are the two things that are really coming out of this decision. One, you have a clarification of what Hosanna-Tabor did. So it's not broader than Hosanna-Tabor, but in some ways it's deeper than it because it drills it down and helps identify and locate Hosanna-Tabor within the broader church autonomy doctrine.

 

With that, I'd be happy to take some questions.

 

Greg Walsh:  Perfect. Let's now go audience questions. We'll now go to the first caller.

 

Caller 1:  Yeah, hi. I'd like to return to the argument before the Court to a colloquy between Justice Kagan and the attorney for Becket. She asked about a math teacher who is told to embody religious values and infuse instruction with those values, whether that person would be eligible and covered by the exception. Attorney for Becket said, "No." She said, "Well, what about a math teacher who is told to begin every class with a prayer and leads the class in a prayer?" The attorney for Becket said, "No." And she says, "Well, what if they're teaching 20 minutes of theology every day, but they're still a math teacher?" Attorney for Becket again said, "No, they're not covered by the exception."

 

So apart from telegraphing to headmasters, like myself, never to retain Becket if we're sued by our math teacher, I'm curious to know whether that view of you—a view, by the way, that finds purchase on Page 15 of Sotomayor's very hostile dissent—whether that is the view of Becket? And if it's not the view of Becket, why is Becket's attorney making that kind of argument in the Court?

 

Daniel Blomberg:  Thanks for the question. The ministerial exception has been understood as protecting the ability of faith groups to express their faith and to ensure that the transmission of their faith is unhindered. And so the core, the heartland considerations that drive what the ministerial exception about, isn't any employee of a religious organization but rather those that are involved in the expression of religious faith.

 

So if you have an employee, say, a math teacher, who really doesn't do very much of that, really does almost none, de minimis amounts, of it, then, in those cases, courts have never found—any courts since 1972—that those individuals would be a minister.

 

Now, there are other doctrines that come into play that are important to consider here, including doctrines that are available under -- just statutory ones, for instance, under Title VII that protect the rights of religious organizations to hire and fire for religious reasons. So those doctrines are there.

 

There's also the freedom of expressive association. This is the idea that even if somebody's not teaching your faith all the time, if they're an employee at your school, and you have a religious school—so maybe they're the coach on a team or something like that or a math teacher—and they start espousing views that directly violate the faith of your school, well, that's going to raise significant expressive problems. If you allow somebody to stay on staff who is in a leadership position and they come in and say, "Hey, two plus two is four, and also, Jesus is not the son of God." That's going to be a problem for a Catholic school.

 

So while the ministerial exception probably wouldn't apply in those circumstances, the freedom of association would and probably laws like Title VII, the religious exemptions, would apply to protect a religious school's ability to make sure that their ability to express the faith remains unhindered.

 

The key here is that the ministerial exception is very strong medicine that protects these kind of, at a very high level, decisions that have to do with people who lead or express the faith in significant ways.

 

Greg Walsh:  Thank you. Let's now go to the next caller.

 

Caller 2:  Thanks for the presentation. As I understand, all three cases, and what you've just said today, it is framed in terms of the religious organization's right to select their own ministers, their own leaders. So that manifests itself in hiring and firing. But how does this doctrine relate to other employment decisions that are not as overt as hiring and firing, such as harassment, accommodation, pay rate, leaves, and so on? How would that fit in?

 

Daniel Blomberg:  Great question. Thank you. Today's decision only concerned the question of hiring and firing. That was the issue on the table, so to speak. Now, the doctrinal implications and things like that are going to carry farther than that, and the courts aren't quite as clear on how the ministerial exception applies outside that context.

 

There have been some courts that have said that there's a little less discretion to religious groups on certain types of internal employment decisions that aren't hiring and firing; and then, other courts have rejected that. They said no, basically, if somebody is a minster for a religious organization, then all of the fundamental employment aspects of the relationship are going to be something that the religious group gets to control.

 

You don't have to work there, but if you choose to work there, then they're going to be able to tell you, for instance, where the ministry is going to take place. If the Catholic church says, "If you want to be a priest, you got to be able to be a priest in Peoria," or something like that. And then, they get to make those internal decisions about the supervision of the employment.

 

You saw that, actually, in today's opinion. Several times, the Court emphasized that not just the decision to select and the decision to terminate, but also the supervision of an employee is within the religious group's control. That, of course, makes a large degree of sense because it's the only power that a religious group has in ensuring that their ministers are accurately reflecting and preaching the faith is the power of termination or the power of the initial hire. And that really kind of hollows out their ability to ensure fidelity when it comes to issues of faith.

 

If somebody starts preaching in a way that's inconsistent with the faith, you're putting the religious groups in a very difficult position if what they have to do, then, is choose between pastorally coming alongside this minister and helping them to get to a place that more accurately reflects the faith group. But then, that could be viewed as harassment. So then, the religious groups are left with -- the only tool in their toolkit really is the tool of termination. A lot of religious groups don't want to do that.

 

Of course, this would be exactly the kind of thing, I think, in a certain respect, that Justice Alito was getting at in the majority opinion where he said the government not only can't control those decisions, it can't even try to influence them when it comes to pushing the religious groups in a way that would prevent them from being able to make those internal pastoral decisions about working alongside a minister who needs some direction or guidance short of termination.

 

So that issue isn't quite as clearly resolved in lower courts, but a lot of the principles are established in cases like today.

 

Caller 2:  Understood. Thank you.

 

Greg Walsh:  Let's now go to the next caller.

 

Caller 3:  Let me pursue what I think you were kind of on the edges of with the last questioner, and I guess it's two parts.

 

One, let's assume religion does not enter into the decisional process with respect to hiring or firing. I assume even if one is a minister, that under Title VII, one can't hire or fire on the basis of race. My second question's going to be sex post Bostick, but let's get to that in a second. But you can't hire and fire on the basis of race, age, blah, blah, blah in Title VII.

 

And secondly, I assume we're going to see some very difficult decisions coming in the future where faith does dictate hiring, firing when it comes to sex, transgender, post Bostick.

 

So I'm kind of interested in, one, this isn't open season for discriminating on the basis of race, etc. And secondly, the tough cases are going to be the post-Bostick, faith-based decisions not to hire or to fire.

 

Daniel Blomberg:  Yeah, thanks. I understood the two questions being, one, what about terminations or selection decisions that are made for non-religious reasons; and what about the ones that are made for religious reasons?

 

Actually, these cases were both cases where there wasn't an expressed religious reason for the termination. It wasn't like, "Hey, you're no longer praying the Hail Mary right. You're praying it in a way that's inconsistent with the faith." It was, "You're not leading the classroom correctly. You're not teaching in a way that maintains order and discipline in the classroom." These cases address the first question. Yeah, a religious group can, when it comes to their ministers, they can make termination decisions regardless of whether that termination decision, or selection decision, is grounded in a specifically religious rationale.

 

Of course, that actually makes a lot sense because if we're talking about somebody who embodies the faith, who expresses the faith, then necessarily their inability to maintain order in the classroom, while some might see that as a secular criteria, reflects poorly on the religious ministry. And if they can't maintain order in the classroom, regardless of whether they're saying the Hail Mary right, they're still not going to be inculcating the faith in the way the school wants.

 

Yeah, courts have been pretty uniform on that going back for decades, recognizing that it's not required that a religious group have an expressed religious rationale for termination. And this is good, right? And it's good that religious groups have a lot of flexibility here because that protects religious diversity, that robust religious diversity the court was talking about because different faith groups have different criteria and different considerations they're looking at when it comes to who's going to best embody the faith.

 

You have some faith groups right now that are intentionally hiring from only minority faith backgrounds, or primarily from minority faith backgrounds -- sorry, not minority faith but minority race backgrounds, and that could raise racial discrimination concerns if they're expressly saying, "We'll only hire somebody from this particular race or this particular ethnicity."

 

That faith group can legitimately be saying, "Well, we want to minister in this context and so we're going to -- this is a criteria that, as a faith, we want to pursue." From secular perspectives, that could be very problematic, but that's not something that courts get to interfere with. They can't come in and tell a religious group to stop making those kind of determinations when it comes to their ministers.

 

All nine members of the Court today, to the second side of that question, all nine members of the Court today agreed that when a termination or selection decision is made pursuant to a religious purpose—you really are saying the Hail Mary wrong—then yeah, definitely, the ministerial exception is going to apply there.

 

So you got both sides of the protection that are reflected in longstanding First Amendment case law, again, going back to 1972. Thanks for the question.

 

Greg Walsh:  Daniel, is there anything else you want to focus on before we conclude this afternoon?

 

Daniel Blomberg:  No, I think we've had a really good discussion and appreciate the opportunity.

 

Greg Walsh:  Perfect.  Well, it doesn't look like we have any more callers, so on behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.