On Monday, the Supreme Court heard two cases that require it to decide when an employee becomes a “minister” and loses legal employment protections. The answer may be: whenever their boss says so. The cases would expand a doctrine announced in 2012, when the court unanimously granted religious employers a sweeping exception to civil rights laws. Back in 2012, many court watchers were surprised that the more liberal wing of the court would sign onto a ruling that carved a hole in nondiscrimination laws. It appears the liberal justices may now regret those votes.
The two cases argued Monday, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, revolve around the “ministerial exception,” which the Supreme Court has drawn from the First Amendment’s religion clauses. This rule bars the government from “interfering with the decision of a religious group to fire one of its ministers.” But who, exactly, is a minister? A priest or bishop obviously qualifies; so does a Sunday school teacher who focuses on religious education. These individuals, as SCOTUS put it, play a key role in “the internal governance of the church” and help “personify its beliefs.” But does this apply to an instructor who teaches calculus at a Catholic school? What about a janitor? When, in other words, are an employee’s duties sufficiently religious to trigger the exception?
Kristen Biel and Agnes Deirdre Morrissey-Berru’s cases illustrate this problem well. Both taught at Catholic schools until they faced discrimination: Biel alleges she was fired because she got breast cancer; Morrissey-Berru claims she was terminated for being too old. Both women sued, and their employers raised the ministerial exception as a defense. The 9th U.S. Circuit Court of Appeals, however, found that neither woman qualified as a minister. Biel was a fifth grade teacher who taught mostly secular subjects, and she had no religious training; her chief religious obligation was to teach a “standard religion curriculum” from a workbook. Morrissey-Berru, a sixth grade teacher, also had no religious background; her employer merely directed her to “incorporate Catholic values” into her teaching and lead the students in daily prayer. Their sectarian duties were, at most, tangential to their primary secular responsibilities.
The 2012 Supreme Court decision establishing a ministerial exception, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, did not lay out a test for courts facing cases like Biel and Morrissey-Berru. It was, instead, deliberately opaque, leaving the precise contours of the exception for another day. That day arrived on Monday, and it wasn’t pretty. Justice Elena Kagan captured the quandary in a colloquy with Eric Rassbach, who defended the employers. She gave Rassbach a list of hypotheticals, asking him to say whether the employee would qualify. How about “a math teacher who is told to teach something about Judaism for minutes a week”? They would not qualify as a minister, Rassbach said.
What if the teacher was “told to begin every class leading the Shema,” a Jewish prayer? No, Rassbach said.
“A math teacher who was told to embody Jewish values and infuse instruction with Jewish values?” Kagan asked.
“Probably not,” according to Rassbach.
“A nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs?”
“I think a nurse doing that kind of counseling and prayer may well fall within the exception,” Rassbach responded.
“A press or a communications staffer who prepares press releases for a religious institution of all kinds that they need?”
Yes, Rassbach said.
“A counselor at a church-affiliated rehab clinic who urges his patients to reconnect with their faith community?”
“Probably,” Rassbach responded, “but it depends on how much connecting there is.”
“An employee at a soup kitchen who distributes religious literature and leads grace before meals?”
Likely not, Rassbach said.
“A church organist who provides musical accompaniment and selects hymns for services?”
“Usually” yes, Rassbach told Kagan.
“A cook who’s actually not Jewish but who prepares kosher-compliant meals for children at a Jewish school?”
After completing her hypotheticals, Kagan asked Rassbach: “What’s the connection? What are we supposed to draw from this?” Rassbach asserted that employees “performing on behalf of the religious body” fall under the exception. But it is unclear why a rehab counselor who tells his patients to go to church counts as a “minister” when a teacher who begins every class with a Jewish prayer is not.
Justice Ruth Bader Ginsburg also tried and failed to nail down a limiting principle. She asked Rassbach if athletic coaches at parochial schools would qualify. Not “necessarily,” Rassbach said. “Suppose they lead the team in an opening prayer?” Ginsburg added. Rassbach then backtracked and said a praying coach generally would not count as a minister. It appeared that the attorney himself could not figure out the true scope of the exception he sought.
Amusing as this line drawing may be, these cases pose a real threat to long-standing employee safeguards. Ginsburg described the breadth of the requested exception as “staggering,” noting that it would exempt religious employers from “all anti-discrimination law.” That includes measures to protect workers from disability and age discrimination. But an employee “having cancer has nothing to do with the performance of her religious function,” Ginsburg pointed out to Morgan Ratner, a Justice Department attorney defending the schools. Why should the exception apply when an employer isn’t trying to protect the integrity of his church, Ginsburg wondered, but trying to save a buck by firing a sick employee? And what about a religious teacher who reports “sexual harassment by a priest and is terminated—she has no remedy?”
“I think that there may well be arguments that that type of retaliation claim would also have to be covered,” Ratner said. She called the exception “categorical.” It applies to all claims, from sexual harassment and equal pay claims to disability discrimination to illegal retaliation, so long as an employer says the alleged victim performs religious functions.
Sotomayor seemed disturbed by that argument. “You’re asking us to defer to the religious organization’s determination” of who is a minister, she told Ratner. “That’s a recipe for saying” that anyone whose duties touch on religion qualify—“all the school has to say is, that’s important to us.” And Justice Stephen Breyer wondered why the religious exemptions already included in various federal laws are inadequate to protect parochial schools’ liberties.
Rassbach and Ratner’s arguments also alarmed the conservative justices, for a very different reason: They don’t appear to want courts drawing these lines at all. “How exactly,” Justice Clarence Thomas asked Rassbach, would “a secular court go about determining whether an employee’s duties and functions are religious or whether they’re important?”
“I don’t see what standards a secular court would use,” Thomas added, to determine what counts as a “religious duty or function.” Justice Neil Gorsuch used the same phrasing, wondering how “a secular court” could make that “judgment.” Forcing courts to assess these matters, Gorsuch declared, “discriminates in favor of majority conceptions about religious doctrine and teaching.” Why, he asked, “couldn’t we just simply say” that the employer decides “who is a minister”?
There is actually a good reason why courts should not do that: It allows religious employers to game the system. Some law firms advise religious clients to saddle secular employees with a few minor spiritual duties to bring them into the ambit of the ministerial exemption. The rule is already easy enough to exploit; deferring entirely to a boss’s account of who’s a “minister” would let any religious employer strip their entire workforce of legal protections. It may be difficult, as Chief Justice John Roberts indicated, for courts to “determine what is a significant religious function and what is an insignificant one.” But that’s the job that courts gave themselves by reading this rule into the Constitution in the first place.
By the end of Monday’s arguments, it seems likely that the five conservatives will expand the ministerial exception, possibly to anyone labeled a “minister” by their boss. (An employee may not even know they’re deemed a minister until they attempt to sue.) The liberals, meanwhile, seemed to regret unleashing this doctrine in 2012 with no power to rein it in. Jeff Fisher, who represented the teachers, warned the court that “hundreds of thousands” of workers would face legal discrimination if the court broadens the exemption. To the liberal justices, that outcome would be appalling. But their colleagues may believe it is long overdue.