By: Andrew Coyle, Staff Member, Vol. 19
Teachers as “Ministers”
In its recent opinion in Our Lady of Guadalupe School v. Morrisey-Berru, the U.S. Supreme Court changed the “ministerial exception” of the religion clauses of the First Amendment. The ministerial exception is a judge-made doctrine that a religious organization can use to bar a court from hearing a labor law claim brought by an employee against that employer, so long as that employee qualifies as a “minister.” The Supreme Court has now broadened the scope of employees that qualify as ministers. Now, the ministerial exception forecloses federal courts from hearing employment discrimination suits brought by former teachers employed by parochial schools against the schools themselves.
The Court in Our Lady of Guadalupe defined the former teachers as “ministers,” making the ministerial exception applicable and barring the teachers from bringing their claims. This decision may advance the important objective of protecting a religious school’s First Amendment rights, but it does so by eroding anti-discrimination laws. The “functional” approach adopted by the majority to determine who is a “minister” will lead to unjust results for thousands of employees.
In 2012, the Supreme Court first decided whether the “ministerial exception” in fact existed. In Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., the Court found that a former parochial schoolteacher was a “minister” for the purposes of the ministerial exception. The Court, therefore, barred the teacher’s labor lawsuit.
In so doing, the Court had to define just what made someone a minister. Writing for the majority, Chief Justice Roberts identified four factors that would be considered in determining ministerial status: whether the employee was held out as a minister with a formal title, whether the employee had “significant religious training,” whether the employee held himself out as a minister, and the religious functions the employee served.
Justice Alito, joined by Justice Kagan, wrote a concurring opinion that placed special emphasis on the religious functions factor. Alito argued that the main part of the analysis in determining ministerial status should be examining the function that the employee served within the religious organization itself.
Justice Thomas also wrote a separate concurring opinion. Thomas argued that courts should be deferential to a religious institution’s good-faith understanding of who in fact is a minister in their organization. He thus rejected any specific test to determine who falls into the ministerial exception.
The Supreme Court did not decide another ministerial exception case until Our Lady of Guadalupe. This case was consolidated with St. James School v. Biel. Both cases involved former teachers at Catholic parochial schools. In both cases, the schools did not renew the teachers’ contracts, citing their teaching performance as the basis for not renewing. In Our Lady of Guadalupe, the teacher believed the termination was actually because of her age and filed suit against the school under the Age Discrimination in Employment Act (“ADEA”). In St. James, the teacher was employed at the schoolwhen she learned that she had breast cancer. She took time off from work to receive treatment. The school did not renew her contract, citing her “classroom management.” The teacher filed suit under the Americans with Disabilities Act (“ADA”).
Both cases eventually reached the Ninth Circuit. That court considered the four factors outlined in Hosanna-Tabor and concluded that neither teacher could qualify as a minister. The Supreme Court eventually took both cases and consolidated them, leaving us with the recent decision in Our Lady of Guadalupe.
This time, Justice Alito wrote the majority opinion. In a 7-2 decision, Alito used the “functional” approach that he advocated for in Hosanna-Tabor. The majority concluded that neither teacher could bring suit against the schools because they functioned as “ministers” in their duties to provide an education to students. Alito reasoned that a religious education was at the heart of religious freedom, so the teachers functioned as “ministers.” This means the schools could terminate them without regard to labor laws.
Justice Thomas wrote a separate concurrence, again advocating for the same “deferential” approach he outlined in Hosanna-Tabor.
Writing in dissent, Justice Sotomayor, joined by Justice Ginsburg, argued that the decision gave too much power to religious organizations in choosing to fire employees. She pointed out seemingly absurd results that the majority’s decision would allow (e.g. a Jewish teacher could be considered a “minister” of the Catholic faith even though the teacher is not Catholic). Sotomayor argued that the decision would lead to patently unfair results that would undermine labor laws.
Our Lady of Guadalupe raises several issues and leaves other questions unanswered. First, Justice Sotomayor is spot-on in recognizing that the majority’s approach gives a religious organization far too much power in dismissing employees. If ministerial status is determined mostly by function without consideration of the other factors outlined in Hosanna-Tabor, a school could define almost any employee as a minister if they could identify a religious function that the employee serves.
For example, a janitor at a school could be called a “minister” simply because the janitor leads the school in prayer every morning before class. Prayer is certainly at the heart of many religious organizations’ goals, but leading prayer alone does not normally make one a minister of a faith. However, under the current test set forth in Our Lady of Guadalupe, as long as the employee serves a religious function, a court could consider that employee a minister.
Under the majority’s approach, almost any religious function seems to qualify an employee as a minister. In Our Lady of Guadalupe, both teachers occasionally led students in prayer or taught lessons from the Bible, but religious instruction was not the primary function of either teacher’s employment. Despite this, the Court thought this was enough for both teachers to be ministers.
A religious employer may require all employees to serve similar religious functions. In essence, under the current test, all employees could be considered ministers. If any employee of the religious institution can qualify as a minister, then the ministerial exception effectively defangs any protections given to those employees from labor laws.
The functional approach now taken by the Court creates a significant moral hazard. The ministerial exception has now turned from a narrow exception into a blank check to discriminate. While the Court hoped to protect religious freedom in broadening the exception, this decision conflicts with so many goals and protections of labor laws like the ADEA and ADA. The four-factor analysis in Hosanna-Tabor was a reasonable way to determine ministerial status because it did not treat every employee as a minister. The Court should return to that analysis. Until then, more employees will find themselves without a remedy for being unjustly fired. Should the First Amendment leave them without such a remedy? The Court should decide soon.