In 2014, Kristen Biel was diagnosed with breast cancer. A fifth-grade teacher at a Catholic school, Biel revealed her illness to the principal, Sister Mary Margaret Kreuper—who then declined to renew her contract. (Kreuper has since been accused of embezzling money from the school.) Biel filed a lawsuit alleging disability discrimination, but the school declared that it was shielded from the suit by the First Amendment. A lower court disagreed, allowing the lawsuit to move forward. The school appealed to the Supreme Court to step in and shoot down Biel’s lawsuit.
On Wednesday, the justices agreed to hear Biel’s case, along with a second one that poses the same question. (Biel has since died, and her widower is defending the suit.) Both cases ask whether sectarian schools can insulate themselves from lawsuits by employees who allege that they’ve been unlawfully mistreated. Both give the court an opportunity to expand the scope of religious employers’ constitutional liberty to violate employment laws that bind everybody else.
The new cases are St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru. Morrissey-Berru presents the same basic issue as Biel’s case. A Catholic school terminated then-64-year-old Agnes Deirdre Morrissey-Berru’s contract, and she sued for age discrimination. The schools deny any misconduct but sought to quash the lawsuits by claiming the teachers fell under the “ministerial exception” and thus could not sue in the first place.
For secular employers, the law is clear-cut: They cannot discriminate against or fire anyone on the basis of race, color, religion, sex, national origin, age, disability, or pregnancy status. Many states also bar discrimination because of sexual orientation and gender identity, and the Supreme Court may soon rule that federal law does, too. But the ministerial exception limits the application of these laws to religious organizations. (Lower courts, as well as the Trump administration, have also applied this rule to labor laws like wage-and-hour regulations, an issue SCOTUS has not resolved.) This exception is rooted in the First Amendment’s religion clauses, which guarantee free exercise while mandating the separation of church and state. The basic principle is that the government can’t interfere with a religious group’s internal affairs, since doing so would entangle the state with religion while curtailing the rights of the faith leaders.
In 2012’s Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the Supreme Court unanimously ruled that the ministerial exception applied to a teacher at a Lutheran school who was designated a “commissioned minister,” led students in prayer, and attended weekly chapel service. Her job duties, the court explained, “reflected a role in conveying the Church’s message and carrying out its mission.” She was therefore barred from suing the school after she was fired for being narcoleptic.
Hosanna-Tabor didn’t spell out exactly how courts should determine which employees are “ministerial,” and declined to provide any “rigid formula.” In Biel and Morrissey-Berru, the 9th U.S. Circuit Court of Appeals applied a “totality of the circumstances” test to find that neither employee was “ministerial.” The school classified Biel as a teacher, not a minister, and she had no religious training or background. The same went for Morrissey-Berru. Biel’s chief religious duty was to teach a “standard religion curriculum” for “about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration.” Morrissey-Berru was obligated to “incorporate Catholic values” into her teaching and lead the students in daily prayer.
Both schools are represented by the Becket Fund for Religious Liberty. (Becket claims to support freedom for all religions—but in the most important religious discrimination case of the decade, the challenge to Donald Trump’s travel ban, it refused to take a side.) The group’s goal is apparent: To secure sectarian employers’ freedom to discriminate against anyone whose duties even touch on religion, not merely ministers and their equivalents. Such a decision would be a windfall for religious employers, giving them a free pass to discriminate against workers whose jobs carry any kind of faith-related responsibilities. It’s easy to envision a religious school declaring that receptionists and janitors further the spiritual mission by creating a safe and clean environment for the proselytizing of children.
There is little doubt that SCOTUS will use Biel and Morrissey-Berru to extend the ministerial exception well beyond Hosanna-Tabor. The Supreme Court’s conservatives are extremely protective of the religious liberty of Christians, advocating for ever-broader rulings to grant churches new constitutional rights. (As the ruling in favor of Trump’s travel ban indicates, the conservatives’ record on the liberty of religious minorities, including Muslims, is more checkered.)
Or religious employers could simply assign workers some nominally faith-based task to shoehorn them into the ministerial exception. As Ian Millhiser pointed out in Vox, they already have: In 2015, the Southern Baptist Convention advised religious employers to shield themselves from nondiscrimination suits by giving workers “duties that directly further the religious mission.” For instance, receptionists should be “required to answer basic questions about the church’s faith, provide religious resources, or pray with callers.” That way, if they sue down the road, the employer can insist they were “ministers.”
A number of civil liberties groups have explained that exempting religious employers from nondiscrimination law could have dire consequences. Most obviously, it would legalize discrimination against LGBTQ people, women, racial minorities, and other frequent targets of workplace bias. In fact, the Southern Baptist Convention promulgated its “everyone’s a minister” guidance specifically to ward off lawsuits from gay and transgender employees.
But there’s another problem: When the ministerial exception applies, employees might be too afraid of retaliation to report not just discrimination but also harassment, bullying, public health violations, and even criminal conduct. They could be punished for cooperating with government investigations or testifying in court. It’s easy to forget that civil rights laws—including strong safeguards against retaliation when an employee blows the whistle—make us all safer. Immunizing religious employers from this whole legal regime discourages responsible employees from speaking up when they see flagrant violations of the law.
Hosanna-Tabor was likely unanimous because it was narrow; the teacher at issue was literally a “commissioned minister.” Now the Supreme Court has a chance to broaden out the ministerial exception to faux-ministers like Biel and Morrissey-Berru, allowing an entire subset of employers to game the system by giving every worker some nominal religious duties. If the court takes that leap, it will use the ministerial exception to blow yet another hole through civil rights law.