The religious education and formation of students is the very reason for the existence of most private religious schools, 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.
Just three weeks after its landmark ruling expanding its interpretation of Title VII discrimination protection to bar sexual orientation and gender identity-based discrimination, the U.S. Supreme Court issued its decision in Our Lady of Guadalupe School v. Morrissey-Berru, in which the Court bolstered the rights of religious schools and institutions to select their employees, free from government interference or fear of discrimination claims.
On July 8, 2020, in a 7-to-2 opinion, the Supreme Court adopted a broad interpretation of the “ministerial exception” under the religion clauses of the First Amendment, which protects religious employers from antidiscrimination lawsuits, ruling that the exception forecloses the adjudication of two Catholic schoolteachers’ employment discrimination claims. In reaching this conclusion, the Court relied on its prior decision in Hosanna-Tabor, in which the Court held that the First Amendment barred a court from hearing an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught.
The First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Specifically, the ministerial exception bars the application of antidiscrimination laws to religious institutions’ employment relationships with its “ministers.” In Hosanna-Tabor, the Supreme Court refused to adopt a rigid formula for deciding when an employee qualifies as a minister and instead, identified four relevant considerations for determining if the ministerial exception applies:
- whether the employer held the employee out as a minister;
- whether the employee’s formal title reflected ministerial substance and training;
- whether the employee held herself out as a minister; and
- whether the employee’s job duties included “important religious functions.”
In Hosanna-Tabor, the Court held that Ms. Perich qualified as a “minister” under the ministerial exception. Applying the four-factor analysis, the Court considered her title, “Minister of Religion, Commissioned,” as well as her notable religious and educational training. Further, the Court found persuasive the fact that in her role, she was responsible for teaching religion and participating with students in religious activities. Accordingly, the Court determined that she qualified as a “minister,” and therefore, her employment discrimination claim could not be adjudicated by the courts. Although Hosanna-Tabor provided lower courts with a helpful framework for determining whether the ministerial exception applies, the exact boundaries of the exception, and the weight that should be placed on each factor, remained open for interpretation.
The Court’s July 2020 ruling in Morrissey-Berru now provides the clarity that Hosanna-Tabor did not concerning the application of the ministerial exception. In that case, two elementary school teachers at Catholic schools, Ms. Morrissey-Berru and Ms. Biel, brought employment discrimination claims against the schools after each teacher’s employment was terminated. The principal issue before the Court was whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools, where their titles do not include the term “minister” and/or they lack formal religious training, but they are entrusted with the responsibility of instructing their students in the faith. Ms. Morrissey-Berru claimed that her employer demoted her and failed to renew her contract in order to replace her with a younger teacher, in violation of the Age Discrimination in Employment Act of 1967. Ms. Biel alleged that her employer discharged her because she had requested a leave of absence to obtain breast cancer treatment. Both religious employers invoked the ministerial exception and successfully moved for summary judgment at the district court level, but in both cases the Ninth Circuit reversed, reasoning that the teachers did not have the credentials, religious training, or ministerial background to qualify under the ministerial exception.
The Supreme Court disagreed, indicating that the Ninth Circuit’s rigid approach in applying the four factors produced a distorted analysis. Instead, the Supreme Court applied an expansive interpretation of the ministerial exception, which, in turn, provides broad protection for religious employers. Ultimately, the goal of this analysis, according to the Court, is to examine all relevant circumstances to determine whether a particular position implicates the fundamental purpose of the exception. The Supreme Court explained that the Ninth Circuit mistakenly treated the factors outlined in Hosanna-Tabor as a checklist, and focused too heavily on the fact that the teachers did not hold the title of “minister” and received minimal religious training, while inappropriately diminishing the importance of their religious duties to instruct and guide their students in faith. Accordingly, the Supreme Court held that because the two teachers were employed under agreements that set out the school’s mission to develop and promote a Catholic faith community, imposed commitments regarding religious instruction, worship, and personal modeling of the faith, and explained that teachers’ performance would be reviewed on those bases, these teachers fell squarely within the ministerial exception, and therefore, their discrimination claims were barred.
The Court concluded its opinion by explaining, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” The Court’s decision in Morrissey-Berru focuses on the ministerial exception in the context of religious schools, and relies, in part, on the importance of a school teacher’s role in shaping their student’s faith. Although the Court did not specifically indicate how its interpretation of the ministerial exception in Morrissey-Berru applies to other religious institutions and their employees, in light of this expansive and deferential decision, religious institutions of varying types now have a strong argument for protection against discrimination claims brought by their employees who perform a wide range of ministerial and faith-based functions for the organization.
Notably, this decision was issued on the same day that the Supreme Court decided another case involving religious freedom, in which the Court ruled that the Departments of Health and Human Services, Labor, and the Treasury had authority under the Affordable Care Act (“ACA”) to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees.