EMPLOYMENT
SCOTUS Broadens Anti-Bias “Ministerial Exception”
Ruling leaves LGBTQ workers at religious schools without key employment protections
BY ARTHUR S. LEONARD
Just weeks after the Supreme
Court ruled that
Title VII of the Civil Rights
Act of 1964 protects LGBTQ
people from employment discrimination,
the court took away
that protection from most LGBTQ
people who are employed as teachers
by religious schools.
In a July 8 ruling expanding a
“ministerial exception” to anti-discrimination
laws that it had recognized
under the Free Exercise
Clause of the First Amendment of
the Bill of Rights eight years previously,
the court held that employees
of religious schools whose
job entails teaching religion enjoy
no protection against discrimination
because of their race or color,
religion, national origin, sex, age,
or disability. The court’s vote was
7-2.
The name of the case is Our
Lady of Guadalupe School v. Morrissey
Berru.
The prior decision, Hosanna-Tabor
Evangelical Lutheran Church
and School v. Equal Employment
Opportunity Commission,
involved a teacher at a Lutheran
Church school, whom the court
found to be, in effect, a “minister”
of the Church, since she had been
formally “called” to the ministry
by the congregation after a period
of extended theological study,
and who had even claimed the tax
benefi ts of being clergy. Although
the teacher in question did not
teach religion as her primary assignment,
the court found it easy
to conclude that it would violate
Hosanna-Tabor’s right to free exercise
of religion under the First
Amendment for the government to
intervene in any way in its decision
not to continue this teacher’s employment,
even if — as the teacher
alleged — she was being discriminated
against because of a disability
in violation of the Americans
with Disabilities Act (ADA).
The July 8 decision involved
two teachers at Catholic elementary
schools in the Los Angeles
Diocese. Neither of them was formally
Supreme Court Justice Samuel Alito argued that interfering with the way religious schools choose their
teachers would “undermine” their independence “in a way that the First Amendment does not tolerate.”
a “minister” and neither of
them had extended religious education.
As grade school teachers,
they each taught the full range of
subjects, including a weekly unit
on Catholic doctrine at appropriate
grade level for their students, but
the overwhelming majority of their
time was spent teaching arithmetic,
science, history, reading, and
so forth — the normal range of
what a grade school teacher covers,
but with an overlay of Catholicism.
They also were supposed
to pray with their students every
day, and to attend Mass with them
weekly.
One of the teachers claimed
that she was dismissed because
the school wanted to replace her
with a younger person, leading to
a lawsuit under the Age Discrimination
in Employment Act. The
other claimed she was forced out
because of a disability in violation
of the ADA. In both cases, the U.S.
Court of Appeals for the Ninth Circuit,
reversing trial judges, found
REUTERS/ JONATHAN ERNST
that these teachers could sue their
schools for discrimination because
they were not ministers.
The Ninth Circuit looked to the
Hosanna-Tabor ruling and found
that unlike the teacher in that
case, these teachers did not have
extensive religious education, were
not “called” to ministry or titled
as ministers by their schools, and
were essentially lay teachers whose
time teaching religion was a small
part of their duties.
Justice Samuel Alito, writing for
the Supreme Court, said that the
9th Circuit had misinterpreted the
Hosanna-Tabor case. He rejected
the idea that there was a checklist
that could be mechanically applied
to the question whether somebody
is a “ministerial employee,” instead
focusing on the religious mission
of the Catholic School and the role
the teacher plays in that mission.
“The religious education and formation
of students is the very reason
for the existence of most private
religious schools,” Alito wrote.
“And therefore the selection and
supervision of the teachers upon
whom the schools rely to do this
work lie at the core of their mission.
Judicial review of the way in which
religious schools discharge those
responsibilities would undermine
the independence of religious institutions
in a way that the First
Amendment does not tolerate.”
In a concurring opinion, Justice
Clarence Thomas (joined by
Justice Neil Gorsuch) argued that
the court needn’t even probe into
the details of the teachers’ employment,
but instead should defer to
a religious school’s determination
whether their employees are excluded
from coverage of anti-discrimination
laws because of the
ministerial exception. However, the
court was not willing to go that far,
and Justice Alito’s opinion made
clear that how to classify an employee
of a religious institution is
a fact-specifi c determination that
does require looking at the job duties
of the employee.
In her dissenting opinion, Justice
Sonia Sotomayor, joined by Justice
Ruth Bader Ginsburg, rejected
Alito’s contention that the court’s
ruling was a faithful application of
the Hosanna-Tabor precedent. Although
the court had not explicitly
adopted Justice Thomas’s “deference”
approach, she charged that
it had actually adopted Thomas’s
approach when it classifi ed these
teachers as covered by the ministerial
exception. She wrote that
“because the Court’s new standard
prizes a functional importance
that it appears to deem churches
in the best position to explain, one
cannot help but conclude that the
Court has just traded legal analysis
for a rubber stamp.”
To the dissenters, there was a
world of difference between the
teacher in Hosanna-Tabor and the
teachers in this case, and they
could see no good reason why
church schools should be free
to discriminate on the full list of
grounds prohibited by anti-discrimination
laws when the schools
➤ RELIGIOUS OPT-OUT, continued on p.21
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