Litigation Update: Religious Schools Head to the Supreme Court

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The Ninth Circuit recently split from seven other Circuits in deciding a First Amendment question of cardinal importance: should the church choose who will teach religion to children in church schools, or should the state? Our Lady of Guadalupe School is a small California Catholic parish school sued by a former teacher for age discrimination. The fifth-grade teacher taught religion, led prayer, planned liturgy, and performed other important religious functions. Following the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. EEOC (which concerned a fourth-grade teacher at a Lutheran school who also performed religious duties), the district court found that the teacher’s religious functions were enough to allow dismissal, since allowing the case to proceed would entangle the state in internal religious affairs and violate the school’s right to select its teachers of religion. But, breaking with seven other circuits, seven state supreme courts, and over the dissent of nine of its judges, the Ninth Circuit reversed. Eric Rassbach, counsel for Our Lady, will explain why the Supreme Court should take the case.


Eric Rassbach, Vice President and Senior Counsel, Becket Fund for Religious Liberty


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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Religious Liberties Practice Group, was recorded on Monday, November 4, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on “Religious Schools Head to the Supreme Court.” My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.


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


      Today, we are very fortunate to have with us Mr. Eric Rassbach, who is Vice President and Senior Counsel for the Becket Fund for Religious Liberty. After our speaker gives his remarks, we will have time for your questions, so please keep in mind what questions you have for that time. Thank you very much for sharing with us today. Eric, the floor is yours.


Eric Rassbach:  Thank you for that introduction. And thank you to everyone on the line for joining us today for this FedSoc teleforum. I am happy to be here. I work at a law firm called the Becket Fund for Religious Liberty, as Wes mentioned. And we represent people of all religious faiths, and we are often active at the United States Supreme Court. So that’s why I’m here talking to you today about this religious liberty matter heading to the Supreme Court.


      The cases that I’m going to talk about today are some of the most important First Amendment cases that the Supreme Court has before it right now. We call them the ministerial exception cases. And I thought what I’d do during my brief update before the question and answer period would be to give you a little introduction to the basic underlying question in these cases. And then because historical context is really important in this space, I’ll also provide some historical background, including a little discussion about the key Supreme Court case from 2012 involving the ministerial exception, a case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Then, after we talk about that case and what it did in this area of the law in 2012, I’ll talk about the cases that followed, including the split that has arisen in the last year among the lower courts. And then finally, before we do question and answer, I will discuss the cert petitions that are currently pending before the Court.


      So first, I wanted to just talk about what is the basic nature of this kind of dispute called the ministerial exception dispute? The basic question underlying all of the ministerial exception cases that I’m going to talk about today is what happens when there is a conflict between the First Amendment protection of religious freedom on the one hand and the employment discrimination laws on the other? The typical case in this area comes where a former employee, let’s say a priest or a rabbi or an imam, sues a religious employer or a former religious employer, let’s say a church or a synagogue or a mosque, under the employment discrimination laws claiming employment discrimination of some kind, be it on the basis of age or sex or race or ethnic origin. And the question is which rule should win out? Should it be the Constitution’s protection of religious self-determination in the First Amendment or the employment discrimination laws?


      Now, the edge cases in this space are pretty easy. Everyone knows it would be silly, and also unconstitutional, for a court to award damages against the Catholic church if it were sued by a Catholic bishop for age discrimination because the Vatican has set a worldwide standard for when bishops must retire. The same thing would be true if someone sued a synagogue for ethnic or religious discrimination because the synagogue refused to consider hiring someone who isn’t Jewish to be their chief rabbi.


      Now, if you’re in the regular commercial context, you can’t decide, oh, someone’s Jewish or not Jewish, therefore, they are able to -- they can’t work here at Exxon or Coca-Cola or what have you. That’s against the law. It’s against the employment discrimination laws. But it’s a little different when you’re talking about a synagogue. And that’s the conflict that we’re talking about today.


      At the other end of the fact spectrum, very few people think that there’s a First Amendment issue if, say, the janitor of a large Presbyterian church sues the church because of disability discrimination. So those are the edge cases. But the cases that have tended to become a little harder are the ones in the middle, and that’s what we’ll be talking about today.


      Now, let’s shift to the history of this kind of conflict. So for most of the history of the United States, this sort of conflict did not arise because there weren’t any employment discrimination laws. Those laws were, for the most part, enacted during the 1960s and some in the 1970s with the first important case that identified this problem, the conflict between the First Amendment protection of religious freedom and these new employment discrimination laws, the first important case was a Fifth Circuit case called McClure v. Salvation Army, which was decided in 1972. That case talked about his issue and ruled that the Salvation Army had an exception to the general rule, and eventually that exception became called the ministerial exception to the employment discrimination laws.


      During the couple of decades, really, three decades after that, cases came along fairly regularly through the federal courts and through the state courts where state employment discrimination laws were invoked. And you had prominent cases, for example, one called Rayburn by Judge Wilkinson on the Fourth Circuit. And all of these cases tended to turn on the question of who is a minister? So is this person that’s been identified a minister? You don’t have a lot of cases involving the archbishop or chief rabbi or what have you. You end up having cases about people who don’t have as clear of a role within the organization.


      And the courts have tended to look at what function did the person serve? What kind of duties did he or she carry out? Also, what were that person’s primary duties, some courts looked at. But all of the lower courts identified the ministerial exception as something that was necessarily implied by the First Amendment.


      So that brings us to the Hosanna-Tabor case, the most important case in this space thus far. In 2010, the Sixth Circuit decided a case involving Hosanna-Tabor Evangelical Lutheran Church and School, so it was a church parochial school, a Lutheran one, in Michigan. And a teacher was fired from that school who happened to be a quote, unquote, “commissioned minister” within the Lutheran church. She prevailed both in the district court and the Sixth Circuit, and then the case went to the Supreme Court. And we were hired to represent the church at the Supreme Court, and on the other side was the Solicitor General representing the EEOC as well as Perich’s attorneys, which included now-Judge Srinivasan on the D.C. Circuit.


      Our position was there is such a thing as a ministerial exception which has been identified by all of the lower courts. And Perich qualifies as such a minister, and therefore, she cannot sue under the employment discrimination laws for disability discrimination. The Solicitor General took the position that there is no such thing as a ministerial exception and that, essentially, churches and synagogues and other religious organizations did not have any sort of special role under the First Amendment when it came to the employment discrimination laws.


      The Court decided the case in January of 2012, and it was pretty remarkable for contested religious freedom cases in our space because it was unanimous in favor of the church, 9-0. I don’t think anyone predicted that beforehand. Chief Justice Roberts wrote the main opinion and said that there was a ministerial exception, and that it was rooted in both the free exercise clause and the establishment clause of the First Amendment, and focused on four what he called considerations; quote, “the formal title given Perich by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church.”


      Now, the word considerations is really important in this context, as we will come to see. It is not the word elements or the word factors but instead considerations. Justice Alito wrote a concurrence which was joined by Justice Kagan, which is an interesting lineup. They both said that there was really what they called a functional consensus in the lower courts in that, really, the title part of the majority opinion shouldn’t get -- the unanimous opinion, rather, should not be given too much weight because many minority religious groups do not use titles, so it would be unfair to emphasize titles too much. Really, the main thing to focus on in their view was what functions did the person who’s suing serve within their religious organization.


      So after Hosanna-Tabor was decided in 2012, lower courts began applying the Supreme Court’s decision to a wide variety of situations and started to deal with situations where not all four of the Hosanna-Tabor considerations were present. So one example is a case called Conlon v. Intervarsity Christian Fellowship in the Sixth Circuit. And there, the Court found that only two of the considerations in that case, function and title, sufficed to show that the employee’s role was ministerial. Several of the other decisions said that the primary focus should be on function, while not completely disregarding the other Hosanna-Tabor considerations.


      An example in the Second Circuit is an opinion from Judge Sack where he said that focusing on function helps to avoid judicial entanglement in religious questions because judges can’t really identify who ought to be chosen to perform certain religious functions or the significance of different titles. And he had a classic line in there where he said, “In the Abrahamic religious traditions, for instance, a stammering Moses was chosen to lead the people and a scrawny David to slay a giant.” And his point there was, really, the courts are not able to pick Moses and David. Really, that should be left up to the religious groups.

      That’s how things are going pretty uniformly across all of the lower courts, both courts of appeals and the state supreme courts. But then we got to the Ninth Circuit, and the Ninth Circuit decided last year to do something in a completely different direction. And this is a story that many people familiar with the Ninth Circuit are familiar with, which is that they will sometimes go off in a different direction than the rest of the circuits.

      This case involved a school teacher at a Catholic school, St. James School in southern California. She had had trouble controlling her classroom and was deficient in other aspects of her work. So after her one year contract expired, the school decided not to offer her a new contract. She sued, claiming disability discrimination. The Los Angeles federal district court ruled that she counted as a minister because, among other things, she gave hours of religious instruction to the elementary schools that she was teaching.

      In a 2-1 decision, the Ninth Circuit announced a different standard than all of the other circuits and the state supreme courts that had ruled since Hosanna-Tabor. In an opinion by Judge Friedland joined by Judge Watford, the court really just directly rejected the functional consensus that was identified by Justices Alito and Kagan and said that there had to be something more than just function, though the opinion was not clear about how much more was needed than function, whether all four of the Perich factors were the considerations that were required or something else. But it was clear that function alone would not suffice, even if the functions were extremely important functions. Judge Fisher, who was sitting by designation from the Third Circuit, dissented, saying that this upset the approach of all the other courts and that, actually, this teacher was very similar to the teacher in the Hosanna-Tabor case, and therefore should be treated as a minister.

      We were retained to do an en banc petition at the Ninth Circuit. Now, this is where it gets a little bit complicated. But meanwhile, there was another ministerial exception case with very similar facts involving a Los Angeles area Catholic school teacher at an elementary school, a parish elementary school, engaged for a significant portion of her time in religious instruction. That one was also going through the Ninth Circuit. And while the en banc petition was pending, the panel in that other case decided 3-0 — and that case is called Morrissey-Berru v. Our Lady of Guadalupe School — they ruled 3-0 in favor of Morrissey-Berru.

      The defendant’s school, Our Lady of Guadalupe School, had won in the district court, and the district court had said she’s clearly a minister for the purposes of the ministerial exception. The Ninth Circuit overruled that. The Ninth Circuit said, “We admit that she served a number of important religious functions,” and helpfully listed those out, “but that, under our rule in the Ninth Circuit as announced in the St. James school case, that’s not enough.”

      So then two other sets of judges weighed in. First there was a nine judge dissent from the denial of rehearing en banc petition that we had filed, so that’s nine of the judges on the Ninth Circuit issued a dissental, saying that the panel had adopted what they called a, quote, “resemblance to Perich,” end quote, test. The other court to weigh in was the Seventh Circuit in a case called Sterlinski which involved an organist at a parish Catholic church in Chicago. Judge Easterbrook wrote an opinion that specifically disagreed with the standards set out in the Ninth Circuit opinions and said the Ninth Circuit wrongly, quote, “asks how much like Perich a given plaintiff is rather than whether the employee served a religious function,” end quote.

      The division among the -- especially very clear between the Ninth Circuit and the Seventh Circuit, is once you show an important religious function, what happens next? Does the court end its inquiry and decide this person’s a minister and dismiss the case, or is there something else, not very clear in the Ninth Circuit what else the something else would be, that would then have to be looked for in order to decide whether the person should count as a minister for purposes of  the ministerial exception?

      So we are representing the two schools in the Ninth Circuit cases, and we have appealed both of those decisions to the United States Supreme Court. We just filed our reply brief in the Our Lady of Guadalupe School case on Friday, and the Court will actually decide -- will first discuss it at its conference on November 15. So in eleven days from now, it will be first considering whether to take the Our Lady of Guadalupe case. The other cases are trailing behind.

      The current situation is there’s really three cert petitions pending. So there’s the Our Lady of Guadalupe case, there’s the St. James School v. Biel case, which was the one that resulted in the en banc dissent, and then there’s a third one where Paul Clement is representing the petitioner involving Stephen Wise Temple, which is a Jewish synagogue on the west side of L.A. that has a preschool.

      The fact pattern in that case is a little different because it doesn’t involve the employment discrimination laws; it involves the wage and hour laws. And the plaintiff is actually the California Department of Industrial Relations, which claims that the synagogue is not providing proper lunch breaks and overtime pay to the preschool teachers at the synagogue.

      So out of the three cases thus far, the Our Lady case has attracted the most amicus support and is chronologically out in front. But of course, the Court can decide what it wants to do among the different cases and decide which one it might want to take as a vehicle to address this question.

      There’re also two other cases in the Seventh Circuit that are trailing behind, the Sterlinski case that I mentioned, and another case called Demkovich, which is actually getting argued tomorrow to the Seventh Circuit. And then finally, there’s another Ninth Circuit case involving a Sikh religious organization. That will be getting argued later this month, I believe.

      In our briefs, we pointed out that this is an acknowledged split among the circuits. It’s a deep split, and it’s also not likely to resolve itself because the Ninth Circuit has already rejected rehearing en banc. So really, in our view, the Supreme Court must step in to correct the Ninth Circuit’s error.

      And the stakes are pretty high in these cases for religious organizations because without this protection which, of course, has been around since 1972, would expose them as employers to a lot of claims that they’re deciding they want to move in a different direction with their church or their synagogue or their church school that they’re going to -- they’re involved in discrimination. And of course, most religious organizations are non-profits without huge budgets, and therefore would really be exposed to quite a lot of costs if they were subjected to the full panoply of employment discrimination litigation.

      So we really think this is an issue of nationwide importance. There’s a lot of judges disagreeing on the record about what the right standard is, so it’s really the classic kind of situation for the Supreme Court to step in and fix the First Amendment jurisprudence in this area.

      So I think with that, we could probably move on to question and answer.

Wesley Hodges:  Looks like we do have two questions in the queue so far, but here is our first caller.

Mitchell Keiter:  Hi. Mitchell Keiter calling from Los Angeles. It’s a very interesting issue. I see both sides as someone who’s a parent of a religious school child but also the husband of a religious school teacher.

      I believe in the Stephen Wise case, the California State case, the concurrence raised the question of whether the grounds for discrimination must relate to religious doctrine for the exemption to exist. In other words, if there’s a religious rule that the priest must not be married, then that’s grounds for discriminating on marital status. But if there’s no doctrine about the age of the priest -- I know you mentioned one that there was, but if a particular religion does not have that as a doctrine or doesn’t have anything justifying, let’s say, disability discrimination or wage and hour, should the ministerial exception apply just the same, even if it does not involve the exercise of religious principle?

Eric Rassbach:  So that was a question that actually came up in the Hosanna-Tabor case in 2012 -- or that got decided in 2012, briefed and argued in 2011. And the Court said 9-0 that that sort of missed the point of the ministerial exception in its view. Those were the words that it used, “missed the point of the ministerial exception.” It said that the way that the First Amendment was structured, the question of who is going to be a minister really is left entirely to the church, or the synagogue in Stephen Wise Temple case that you mentioned, or other religious organizations. So that issue has really already been decided in terms of whether you have to have a religious reason for the termination of employment.

Wesley Hodges:  Very good. Here is our next caller.

Don Meinders:  Hi, Eric. My name is Don Meinders, and I’m and employment litigator and a practitioner in this area, so I’m usually on the defense side trying to help ministries decide what their obligations are. Two questions: First, in the Hosanna-Tabor case, did you pursue the functionality argument that Alito and Kagan picked up on, or was it more of a there are multiple considerations argument that the majority pursued?

      And second, is there any kind of sliding scale for application of the exception based on the law at issue? For example, wage and hour laws, it seems to me, are a little easier to apply, regardless of somebody’s function in a religious organization, as opposed to some of the other laws like age discrimination or gender where the ministry has traditional gender viewpoints. So I’m just wondering if the nature of the law at issue is important to the analysis.

Eric Rassbach:  Thank you for those questions. So on the first question, whether we argued about functions at the Supreme Court, we definitely argued about functions. But we were representing our client, so we put everything out there that they could possibly want to rule on in our client’s favor. So I think that we did not say, “You must adopt the functional consensus.” We did point out, of course, that the lower courts really had focused on the function, and that the function did not have to be something that was the primary function; that is, the Court should primarily focus on what is this person’s function, but you don’t have to decide, okay, this person spends 80 percent of their day engaged in religious functions and 20 percent in secular functions, which is kind of what the Sixth Circuit had said.

      The Court rejected that, and there was a discussion, I think at oral argument, where the Chief Justice said, “Well, the Pope does a lot of stuff that looks kind of administrative and not religious. Does that mean the Pope is not really engaged in religious functions?” So the space that was discussed a little bit more in that case was how do you evaluate the different functions? And I think the Court cleared that up. The part that it didn’t clear up was what happens when less than four of the considerations that it looked at in Hosanna-Tabor are present, and that’s why we have a split now.

      On your second question about the sliding scale, the ministerial exception has already been applied outside of the pure employment discrimination law context a number of times. The classic thing is the one that I mentioned, and that’s the one that’s in these two cases, the Our Lady case and the St. James School case. But the Supreme Court left expressly open in a footnote how the ministerial exception would apply to those other areas of law. For example, you can imagine a lot of situations where there might be a contract between a pastor and his church where the contract is very clear and doesn’t require the decision of a religious question. But you can also imagine a lot of contracts where it really would involve a religious question.

      So I think that those areas are probably a little bit messier and not right in the center of what’s going on. I’m not sure I would agree with the sliding scale so much as that there would be maybe a little bit more variation in terms of whether the ministerial exception would apply in certain areas of the law.

Wesley Hodges:  Looks like we do have one more question. Here is our next caller.

Caller 3:  Good afternoon. Have you seen in any of your cases whether or not a strong or a weak contract clause regarding the Catholic identity and mission of the organization — they’re frequently referred to as cardinal clauses — have you seen where those types of contract clauses and their strength or weakness comes into play?

Eric Rassbach:  So those clauses are common for a lot of different religious organizations, not just Catholic organizations. They do come up in terms of, I would say, evidence of what is the person’s role. I haven’t seen too many cases where it’s entirely dispositive of the dispute, though perhaps there’s some dogs that didn’t bark where people decide, “You know what? I agreed that I would adhere to this particular approach to teaching, and I’m not doing it, so I’m not going to go back on that.” So you might have some situations where they resolve outside of litigation or in early stages of litigation.

      But in the cases that have reached the courts of appeals and the state supreme courts, it’s never, to my knowledge, been entirely dispositive. It tends to be something where the court looks at that piece of information, the fact that they agreed to such a clause in advance of any dispute erupting as evidence of what’s going on.

      So for example, in the Fratello case that I was mentioning earlier at the Second Circuit, the fact that there was that kind of clause in the contract with the school principal in that case — it was a Catholic school principal that was suing — and also, the manual, the manual that the Archdiocese of New York in that case had promulgated talking about what is the role of the teacher, what is the role of a Catholic school principal, and that was something that they received and signed off on and were trained in. That kind of thing is good evidence because the courts do have to consider what evidence is out there. So certainly, if I were drafting an employment contract for a minister, I would try to include that.

Wesley Hodges:  We do have one more question in the queue. Let’s go ahead and go to that caller.

Lance Kinzer:  Hey, good afternoon. I’m enjoying the conversation. This is Lance Kinzer from Kansas City. And I had a question about the application of the ministerial exception in a slightly different context to cases involving student leaders in faith based campus ministries. And my understanding is that that’s been argued in a few of the cases like the BLinC case in Iowa, and that while there’s been success in prevailing in some of those cases, typically not on ministerial exception grounds. I was just wondering if you had any thoughts — and if it’s too off topic, no problem at all — but if you had any thoughts about the application of the ministerial exception in that context and whether you think courts may start to apply it in those situations.

Eric Rassbach:  I think that they probably will eventually do that. It’s not that -- like you say, there’s a lot of different claims in those cases. And just in terms of disclosure, I’m counsel in the BLinC case that you mentioned, but it’s one claim among others. I think it is an important claim, and if it ends up being a decisive claim, I wouldn’t be too surprised because, really, those cases are about student leadership within the religious organizations. And so the question would be, can the Muslim student group at the University of Iowa demand that the leader of its student group on campus be Muslim and not Catholic or Baptist or what have you? So that is an important distinction and an important protection that ought to be there and really is in the nature of administerial exception claim.

      You read Hosanna-Tabor, there’s a lot of depth to the opinion by Chief Justice Roberts. And one of the things he talks about is whether there’s an outward facing issue or whether it’s more internal affairs of the religious group. And my argument would be that internal affairs of religious organizations, who should be the leader, who’s orthodox, who’s not orthodox, who’s a good leader and has the right theology for my particular religious group, those things should all not be the space of government bodies like the University of Iowa and instead should be decided by the religious group itself according to its own lights. And that really is at the heart of the ministerial exception in the Hosanna-Tabor ruling.

      So I think that it’s quite possible that in the future you may end up seeing that application. So far, I may be misspeaking, and I’ll get in trouble with one of my colleagues afterwards, but I don’t think it’s been something that’s been ruled on per say.

Lance Kinzer:  Right. Yeah, I think that’s right.

Wesley Hodges:  Well, seeing no more questions from the audience, Eric, I turn the mike back to you. Do you have any closing thoughts for us?

Eric Rassbach:  Yeah, I think the last thing I just would say for those who are interested is that this really is an important issue. It’s important that the Ninth Circuit in particular has gone off in a different direction that it really makes it so that the First Amendment to the Constitution means something radically different in California, Oregon, Washington, Nevada, and the other states of the Ninth Circuit than it does in the rest of the country. I think it’s a classic situation that the Supreme Court should take up, and I really think the Our Lady of Guadalupe case presents a great way for resolving that kind of dispute because it’s a classic kind of dispute that you have in this area.

Wesley Hodges:  Fantastic. Well, Eric, on behalf of The Federalist Society, I would like to thank you for your time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call. We are now adjourned.


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