Barrett Indicates Her Comfort With High Court’s Recent Religion Decisions

By Mark Walsh — October 14, 2020 7 min read
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U.S. Supreme Court nominee Amy Coney Barrett indicated in her confirmation hearing that she would fit in comfortably with the conservative majority on the high court that has ruled in recent years for an expansive view of religious liberty.

During her last day of questioning before the Senate Judiciary Committee on Wednesday, Barrett spoke in generally approving terms of two decisions by the Supreme Court this past spring that were welcomed by religious liberty advocates on the right.

In Our Lady of Guadalupe School v. Morrissey-Berru, the court held that the First Amendment’s religion clauses foreclose federal courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith. The doctrine is known as the ministerial exception.

Barrett noted that she had joined a 2018 decision by the U.S. Court of Appeals for the 7th Circuit, in Chicago, that the ministerial exception applied to bar a disability-discrimination lawsuit filed by a Hebrew-language teacher at a Jewish day school. The appeals court in Grussgott v. Milwaukee Jewish Day School had held that because Hebrew teachers at the school were expected to follow a unified Hebrew and Jewish studies curriculum and to integrate religious teachings into their lessons, they fell within the scope of the ministerial exception.

In response to a question from Sen. Mike Lee, R-Utah, Barrett said the 7th Circuit opinion she joined was in line with this year’s high court ruling in Our Lady of Guadalupe.

“The ministerial exception gives religious institutions discretion to hire, in the case of a school, teachers who are ministers,” Barrett said. “What this gets at is, or what this requires courts to do is decide, who is a minister. ... It gets more difficult if you have a religious school like the Jewish school or Catholic school who has a teacher who is teaching math.”

In the Milwaukee case that she helped decide, the teacher taught Jewish prayers and said Jewish prayers with the class, Barrett pointed out. “The school considered it part of the teacher’s duty to form the students ... in that tradition,” she said.

Our Lady of Guadalupe gives deference to the school’s characterization of whether the teacher is a minister or not—not to encourage discrimination but to encourage religious freedom,” Barrett continued. “At a Catholic school, the teacher might teach math, but also pray with them and attend mass with them. It could also be someone who is also forming children in the faith.”

The court’s vote in the Our Lady of Guadalupe case was 7-2, but on some other recent religion-related cases, the voting lineup has been more narrow. In June, the justices ruled 5-4 in Espinoza v. Montana Department of Revenue that a Montana state constitutional provision barring aid to religion discriminated against religious schools and families seeking to benefit from a tax credit for donations for scholarships.

Lee asked Barrett to offer her thoughts on the Espinoza decision and how if fits into jurisprudence under the First Amendment’s religion clauses—the guarantee of free exercise of religion and the prohibition on a government establishment of religion.

“The Supreme Court’s recent decisions get at the principle that while we have to be careful about the establishment clause [because] there is a line of cases saying that a state or the federal government cannot establish a church—we have a line of cases about what that mean,” Barrett said, “at the same time, Espinoza being an example, the court has been clear that religious institutions cannot be discriminated against or excluded from public programs simply because they are religious.”

The Religion Clauses’ ‘Thicket’

Sen. John Cornyn, R-Texas, on Tuesday raised a Supreme Court decision on student prayers that he has brought up with other recent high court nominees.

In Santa Fe Independent School District v. Doe, the Supreme Court struck down a Texas school district’s practice of allowing student-initiated, student-led prayers at football games as a violation of the First Amendment’s prohibition against government establishment of religion. Cornyn had unsuccessfully argued before the court in defense of the law, and the decision irritates him to this day. But after mentioning the case, he did not ask Barrett to comment on it.

Cornyn did elicit from Barrett her view that the Supreme Court has struggled to with its religion cases.

Barrett recalled that she had discussed the “thicket” of this area when she first sat down with Justice Antonin Scalia to interview as a law clerk in the late 1990s.

“It is a very complicated area of the law, how one might see one’s way through the thicket of balancing the establishment clause against the free exercise clause,” Barrett told Cornyn. “It is a notoriously difficult area of the law to the extent there is tension in the court’s cases. I’m giving you a no better answer, I assure you, than I did to Justice Scalia that day. It’s been something that the court has struggled with for decades, to try to come to a sensible way to apply those clauses.”

Educational Equity, Union Power

Some senators on the committee raised other interesting education cases or issues, but they were more content to speechify about them than necessarily press Barrett for her views.

Sen. Ted Cruz, R-Texas, said he was “deeply passionate” about school choice, by which he apparently meant choice programs that included religious schools.

“The correct arena to fight for school choice is here in the Senate, the legislatures, the politically accountable legislatures,” Cruz said. “Do I want to see a federal court issue an order mandating school choice across the country? It might be simpler if I could convince justices that you must have school choice. ... [I]t would be much easier if five philosopher kings could mandate it. That would not be an appropriate judicial role and I am not asking Judge Barrett to issue any ruling, although I believe it is the right policy.”

Sen. John Kennedy, R-La., late Tuesday asked Barrett about the Supreme Court’s landmark 1973 decision in San Antonio Independent School District v. Rodriguez, about inequities in the Texas education system, which held there was no fundamental federal constitutional right to education.

It wasn’t clear what motivated Kennedy, though there was a federal appeals court decision earlier this year that found there was a federal right to access to literacy. The panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, asserted that the high court’s San Antonio decision, despite the finding of no fundamental right to education, left open for another day the separate question of whether there was a federal right to a minimum basic education in the form of access to literacy. (That opinion was vacated after the underlying lawsuit was settled.)

In any event, Barrett said she wasn’t familiar with the San Antonio decision, and Kennedy quickly moved on to something else.

Sen. Sheldon Whitehouse, D-R.I., on Wednesday led Barrett through a lengthy discussion (by him) about the court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, which overruled a 40-year-old precedent that had authorized teacher’s unions and other public-employee labor organizations to collect agency fees from those who decline to join the union. Whitehouse described Janus as the end result of a multi-year, multi-case project by Justice Samuel A. Alito Jr. to overrule the 1977 precedent in Abood v. Detroit Board of Education.

“There was something about Abood he did not like,” Whitehouse said of Alito, who had laid the groundwork for overruling Abood in three other cases before writing the majority opinion in Janus that the compelled collection of agency fees violates the First Amendment free-speech rights of nonunion members.

Whitehouse also displayed charts showing the connections among lawyers and legal groups that had pressed to overrule Abood in the series of cases, with the senator noting that the dissenters in the 5-4 Janus decision had called it “a six-year campaign.”

“Pretty safe to say that you don’t think courts should be campaigning to reach decisions?” Whitehouse asked Barrett.

“Without commenting on Janus or what happened there, yes, I think judges shouldn’t have campaigns,” she said.

“Or projects?” Whitehouse said.

“I think judges should not have pet projects and they should not have campaigns,” Barrett said. “They should decide cases.”

The committee will hear from panels of other witnesses on Thursday and likely hold its vote on Barrett’s nomination on Oct. 22.

A version of this news article first appeared in The School Law Blog.