The U.S. Supreme Court spent more than 90 minutes of oral arguments over the telephone Monday wrestling with where to draw the line between employees of religious schools who will remain protected by civil rights law and those who will not because they are considered ministers of the faith.
“I can easily see a school in which everybody takes a pledge that everything they are going to do is to help teach these kids to be part of the faith,” Justice Neil M. Gorsuch observed during the arguments in are Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267) and St. James School v. Biel (No. 19-348), about the contours of so-called ministerial exception to employment laws for religious employers.
Gorsuch suggested the next case will involve a religious school asserting immunity for janitors, school bus drivers, or athletic coaches.
“What do we do about that?” he said.
Erich C. Rassbach, the lawyer representing two Roman Catholic schools in the Los Angeles area that invoked the ministerial exception to claim immunity from employment-discrimination lawsuits filed by two lay teachers, said the test he was proposing focused on the religious function of the employee in question.
“At bottom, that is what these cases are about: who controls who teaches the faith to schoolchildren,” said Rassbach, of the Becket Fund for Religious Liberty. “Churches must choose those who teach their faith. ... And since the teachers here were the churches’ primary agents for teaching the Catholic faith to 5th graders, teaching them for hours a week, much more than parish priests, they fall within the ministerial exception immunity.”
Several justices had specific jobs at religious institutions in mind to test his argument.
Justice Brett M. Kavanaugh asked about “the art teacher who teaches about art in the Vatican” or a football or basketball coach who leads students before a prayer before a game.
Justice Elena Kagan said she hoped to get quick answers from Rassbach to a “too-long list” of hypotheticals, given that the court’s unusual May argument session over the telephone was disrupting the usual rhythm of oral arguments.
From Kagan’s rapid-fire list, Rassbach said math teachers at a Jewish school who lead a daily prayer, nurses at a Catholic hospital who pray with sick patients, and the cook at a Jewish school who prepares kosher meals would not fall under the ministerial exception. But the church organist who selects hymns for services and the press spokesperson for a religious institution would be excepted, he said.
“You got through them all, thank you,” Kagan said. “What’s the connection? What are we supposed to draw from all this?”
Rassbach said the common thread for jobs covered by the exception was “preaching, teaching, guiding, communicating, things like that that are crucial to what you do as a religious organization.”
What about teachers who are not Catholic, Chief Justice John G. Roberts Jr. asked.
“Many Catholic schools hire teachers who are not,” Roberts observed. The issue about non-members of a faith who teach at a religious school of that faith was raised several times but perhaps not answered to wide satisfaction.
The teachers in the two cases before the court were Catholic and taught lay subjects to 5th graders at their schools, but also had responsibilities to lead daily religious lessons or participate in prayer services.
Agnes Morrissey-Berru taught at Our Lady of Guadalupe School, in Hermosa Beach, Calif., beginning in 1999, court papers say. Her contract was not renewed after the 2013-14 school year, after the school says she had a problem keeping order in her classroom and later meeting expectations under a new reading and writing program. Her principal asked the teacher, then in her mid-60s, if she wanted to retire. Morrissey-Berru filed a suit alleging age bias under the Age Discrimination in Employment Act of 1967.
Kristen Biel taught at St. James School, in Torrance, Calif. She alleged that she was fired after informing administrators that she had breast cancer and would have to take time off for surgery and chemotherapy. The principal told Biel her contract was not being renewed because of classroom management problems. Biel sued under the Americans with Disabilities Act of 1990, which bars employment discrimination based on disability. Biel died last year and her case for damages is being carried on by her husband.
The schools invoked the ministerial exception to block the lawsuits at an early stage.
Jeffrey L. Fisher, the lawyer for Ms. Morrissey-Berru and for Ms. Biel’s estate, told the justices that the schools’ argument “would strip more than 300,000 lay teachers in religious schools across the country of basic employment-law protections.”
He said “it will blow a hole in our civil rights laws and employment laws to say that categorical immunity applies,” adding that it wasn’t just employment-discrimination laws at issue but also federal wage and hour provisions, family and medical leave laws, and state employment laws.
Fisher urged the court to stick with the case-specific approach it had emphasized in its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. In that decision, the court was hesitant to call it a test, but said lower courts should look to factors such as the formal title of the employee, the substance and uses of that title, and the religious functions the employee performed, to determine whether the ministerial exception applied.
Roberts noted that “different faiths put different stock in titles,” and the use of titles can be “pretty manipulable.”
Fisher did not disagree with that, noting that some religious institutions are being advised to have their employees engage in daily prayers and note in employment manuals that jobs carry important religious functions.
Justice Clarence Thomas, who has been a much more active questioner during telephone arguments this month than he normally is on the bench (where he once went 10 years between asking questions), referred to the religious duties of the two teachers and asked whether “it’s a bit odd that things that would violate the [First Amendment’s] establishment clause, when done in a public school, are not considered religious enough for free exercise protection when done in a parochial school?”
Fisher said the ministerial exception “requires being a leader in the church. It requires not just being a member, but a person in who the stewardship of the congregation has been placed.”
The Hosanna-Tabor decision resulted in a unanimous decision applying the ministerial exception to a Lutheran school teacher who was a “called minister” of her faith. But Justice Samuel A. Alito Jr. wrote a concurrence, joined by Kagan, that suggested the exception should apply to positions of “substantial religious importance.”
Rassbach, arguing for the schools, said that in the eight years since Hosanna-Tabor, there had been a “crystallization” among most federal appeals courts around Alito’s concurrence.
At least two members of the court on Monday expressed concerns about the potential for greatly expanding the scope of the ministerial exception.
“You’re asking for an exception to law that’s broader than the ministerial exception generally and broader than is necessary to protect the church,” Justice Sonia Sotomayor told Rassbach.
Justice Ruth Bader Ginsburg told Morgan L. Ratner, an assistant to the U.S. solicitor general who was arguing in support of the schools, that “the breadth of the exemption is staggering.”
A teacher who fell under the exception and was fired for reporting sexual abuse by a priest would have no remedy, Ginsburg suggested.
Ratner said later that, “Once you’ve made this decision that somebody is performing an important religious function, then this court said in Hosanna-Tabor that getting into why they were dismissed misses the point because, at that point, the religious organization has to be capable of deciding who is going to minister to the faithful, who is going to fulfill that role of teaching Catholic schoolchildren that Jesus is the son of God and God created the world and this is the appropriate way to be Catholic.”
Rassbach said cases involving religious school teachers are “the heartland case” under the ministerial exception.
“These teachers are the primary teacher of the faith,” he said. “They are the stewards of the faith. They are the leaders of their classroom. ... These are the people who will teach the faith to the next generation.”
A decision in the case is expected by the end of the court’s term, which normally is in late June but may be pushed into July this year.
A version of this news article first appeared in The School Law Blog.