Explainer: The Supreme Court reaffirms hiring protections for religious employers

By / Jul 8

In a major victory for religious liberty, the Supreme Court ruled 7-2 in a case entitled Our Lady of Guadalupe School v. Morissey Beru that the ministerial exception applies to teachers employed by religious schools. The Court restated and expanded its holding in Hosanna-Tabor v. EEOC, holding that governments and the courts may not interfere with the hiring practices of religious organizations.

Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh. Justice Thomas wrote a concurring opinion joined by Justice Gorsuch. Justice Sotomayor wrote a dissenting opinion joined by Justice Ginsberg.

What is the ministerial exception?

The ministerial exception is a constitutional protection that bars the government from applying employment discrimination laws to religious organizations. To allow the government to control the hiring practices of religious organizations would infringe on the Free Exercise rights of religious organizations to operate independent of government involvement. Though the ministerial exception is not explicitly stated in the Constitution, it is grounded in both religious clauses of the First Amendment.

The Supreme Court held that there is no rigid formula to determine if the ministerial exception applies. Rather, the Court looks at a variety of factors surrounding the individual’s employment including, but not limited to: official title, religious training, religious credentials, a source of religious instruction, and whether the duties played a role in teaching the religious organization’s message and conveying its mission.

What is this case about?

In this case, a teacher’s contract was discontinued due to exhibiting poor performance. The teacher sued in federal court claiming she had been discriminated against, challenging the school’s right to select their teachers under the ministerial exception. The teacher argued that she should not be considered a minister under the ministerial exemption. However, her job entailed a number of religious duties including daily prayer, preparing the students for Catholic mass, and providing a faith-based education steeped in the Catholic tradition. 

The Ninth Circuit agreed with the teacher’s argument in this case, applying what the Court today called a “rigid formula” for determining whether a particular employee is considered a minister for the purposes of the ministerial exception. 

This case required the Court to decide whether the ministerial exception applies to school teachers who may not have traditional ministerial roles but nevertheless perform religious duties.

Thankfully, the Court overturned the Ninth Circuit’s erroneous ruling, reaffirming that the religious functions of a school teacher are sufficient to invoke the ministerial exception and thus bar the government from dictating hiring practices to religious schools. Though the teacher did not have the title of “minister,” the exception applies because of the teacher’s numerous religious responsibilities within the school. As Justice Alito states in his majority opinion, “What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school” (18).

What is the significance of this case?

The case highlights the importance of preventing government intrusion into the employment practices of religious institutions. Religious autonomy in matters of employment and governance is a fundamental right bestowed upon faith-based organizations in the First Amendment. If secular courts are allowed to second guess religious organizations’ hiring practices, then religious organizations’ autonomy is essentially void.

This decision safeguards the autonomy of religious schools as well as various other religious institutions. The Court properly understood the limits of its authority in matters involving a religious organization’s employment decisions.

How did the ERLC engage in this case? 

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the ministerial exception should apply to school teachers. The brief argued that few decisions “matter more to religious organizations’ fulfillment of their pastoral missions than decisions about which members to entrust with religious functions.”

Justice Alito cited ERLC’s brief in the majority opinion to support his argument that the internal definition and characteristics of a minister vary dramatically across the religious spectrum. Justice Alito wrote:

In addition, religious traditions may differ in the degree of formal religious training thought to be needed in order to teach. See, e.g., Brief for Ethics and Religious Liberty Commission of the Southern Baptist Convention et al. as Amici Curiae 12 (“many Protestant groups have historically rejected any requirement of formal theological training”). In short, these circumstances, while instructive in Hosanna-Tabor, are not inflexible requirements and may have far less significance in some cases (18).

Specifically, we argued that the ministerial exception is vital to ensure religious organizations are properly shielded from unconstitutional government interference in matters of faith. Additionally, we argued that the religious duties performed by the school teachers, though not ministerial in title, must be covered by the ministerial exception.

What does today’s ruling mean moving forward?

The Court reaffirmed the ministerial exception, upholding the fundamental principle to defer matters of religious employment to religious institutions. The Court has affirmed that the federal government cannot weigh in on future determinations on matters of employment by religious schools. Justice Thomas states in his concurring opinion, “What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis”(2).

This case is encouraging as it provides confidence to religious employers that they may make employment decisions based on their religious beliefs. This case provides crucial reassurance at a time when the meaning and scope of civil rights laws are in flux because of the Court’s ruling earlier this Term in Bostock v. Clayton County.

In his comments on this case, Russell Moore commended the Supreme Court for reaffirming religious liberty. He states, “This 7-2 ruling is crucial in reaffirming the religious liberty advocated by early American Baptists such as Isaac Backus and John Leland in coalition with founding leaders like Thomas Jefferson and James Madison. If a religious organization cannot recruit leaders who agree with the beliefs and practices of those organizations, then there can be no true religious freedom.” He continues, “This, then, is a win not just for religious people and organizations, but for all Americans. A government big enough to coerce souls is a government too intrusive to be worthy of the American vision of ordered liberty.”

ERLC interns Julia Stamper, Sloan Collier, and Mary Beth Teague contributed to this article.

Top Quotes from the June Medical Services v. Russo decision

By / Jun 29

Earlier today, the Supreme Court narrowly decided June Medical Services LLC v. Russo with a 5-4 ruling that prioritizes the abortion industry’s profits over the health and safety of women. The decision, according to Russell Moore, was “disappointing and wrong-headed.”

The justices considered a state law, Louisiana Act 620, which required doctors performing abortions to have active admitting privileges at a nearby hospital to ensure that women could be quickly transferred for care in the event of any medical complications. The ERLC filed an amicus curiae brief in this case arguing that because the law sought to bring abortion clinics—which are surgical clinics—under the same medical standards as all other surgical clinics, the legal test should apply, not the undue burden standard.

Commenting this morning, Moore noted how the Louisiana law had a “simple goal of protecting women from danger by placing the most minimal restrictions possible on an abortion industry that insists on laissez-faire for itself and its profits.” Even though today’s decision is a disappointment, Moore promised “we will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.”

Justice Breyer wrote the majority opinion joined by Justices Sotomayor, Ginsberg, and Kagan. Chief Justice Roberts wrote a concurring opinion, joining with the four more liberal justices in the Court’s ruling. Justices Thomas, Alito, Kavanaugh, and Gorsuch each wrote dissents, joining each other at various parts.

Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more on this case and how the ruling will affect the pro-life movement’s legislative and litigation strategy, check out this explainer.

Majority: Justice Breyer joined by Justices Ginsberg, Sotomayor, and Kagan

On third party standing:

This is not “the first abortion case to address provider standing to challenge regulations said to protect women.” (15)

“We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” (13)

“[T]he State’s strategic waiver and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.” (16)

On upholding Hellerstedt:

“The Texas statute at issue in Whole Woman’s Health v. Hellerstedt required abortion providers to hold ‘active admitting privileges at a hospital’ within 30 miles of the place where they perform abortions. . . . In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law.” (2)

“We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health v. Hellerstedt in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional.” (3)

The majority’s “undue burden” analysis: 

“[U]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid.”(20)

[W]e find that the testimony and other evidence contained in the extensive record developed over the 6-day trial support the District Court’s ultimate conclusion that, even if Act 620 could be said to further women’s health to some marginal degree, the burdens it imposes far outweigh any such benefit, and thus the Act imposes an unconstitutional undue burden.” (18-19)

“[W]e think that these findings and the evidence that underlies them are sufficient to support the District Court’s conclusion that Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana.” (35)

Concurring: Chief Justice Roberts

Though Chief Justice Roberts argued that he sympathizes with the dissenting Justices’ reasoning and even dissented himself in Hellerstedt, he voted with the majority on the basis of stare decisis, or deciding cases according to the prior precedent of the Court.

On Stare Decisis:

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.” (2)

“Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.” (11)

“Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.” (16)

Dissents: Justices Thomas, Kavanaugh, Alito, and Gorsuch

Why the Court should not have heard this case:

“To establish standing in federal court, a plaintiff typically must assert an injury to her own legally protected interests—not the rights of someone else.” (Gorsuch, 5)

“Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction” (Thomas, 1)

“Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent.” (Thomas, 20).

“After overlooking so many facts and the deference owed to the legislative process, today’s decision misapplies many of the rules that normally constrain the judicial process.” (Gorsuch, 5)

“Some may not see the conflict in this case because they are convinced that the admitting privileges requirement does nothing to promote safety and is really just a ploy. But an abortion provider’s ability to assert the rights of women when it challenges ostensible safety regulations should not turn on the merits of its claim.” (Alito, 26)

“The judicial power is constrained by an array of rules. . . . Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.” (Gorsuch, 1)

On the constitutionality of abortion:

“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment.” (Thomas, 16)

“But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” (Thomas, 14)

“Since the Court decided Roe, Members of this Court have decried the unworkability of our abortion case law and repeatedly called for course corrections of varying degrees.” (Thomas, 19)

“Under our precedent, the critical question in this case is whether the challenged Louisiana law places a ‘substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ . . . If a law like that at issue here does not have that effect, it is constitutional.” (Alito, 3)

How Louisiana Act 620 promotes patient protection:

“In fact, the Louisiana legislature passed Act 620 only after extensive hearings at which experts detailed how the Act would promote safer abortion treatment—by providing ‘a more thorough evaluation mechanism of physician competency,’ promoting ‘continuity of care’ following abortion, enhancing inter-physician communication, and preventing patient abandonment.” (Gorsuch, 2–3)

“Contrary to the view taken by the plurality and (seemingly) by the Chief Justice, there is ample evidence in the record showing that admitting privileges help to protect the health of women” (Alito, 4)

“A . . . physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges.” (Gorsuch, 4)

Why Louisiana Act 620 does not discourage doctors from performing abortions:

“As Justice Alito thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6) cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.” (Kavanagh, 2)

“This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement.” (Alito, 25)

“Today’s decision also appears to assume that, if Louisiana’s law took effect, not a single hospital would amend its rules to permit abortion providers easier access to admitting privileges; no clinic would choose to relocate closer to a hospital that offers admitting privileges rather than permanently close its doors; the prospect of significant unmet demand would not prompt a single Louisiana doctor with established admitting privileges to begin performing abortions; and unmet demand would not induce even one out-of-state abortion provider to relocate to Louisiana.” (Gorsuch, 12)

ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article

ERLC Supports the Universal Giving Pandemic Response Act

By / Jun 26

Southern Baptists affirm tax policies that incentivize charitable giving. Both families and governments hold an interest in charitable giving so that the voluntary sector of our nation realizes its fullest potential. The institutions of a healthy civil society–houses of worship, poverty relief, education, the arts, and more–depend on charitable giving. Therefore, we object to any tax policy that would have a chilling effect on charitable giving. 

The ERLC affirms that churches, nonprofits, and the services they provide are integral to a functioning and flourishing society. During the COVID-19 crisis, their aid is in need now more than ever. When the devastating economic effects of the COVID-19 pandemic began to take hold in March 2020, many nonprofits and houses of worship were on the frontlines of serving our nation’s most vulnerable, and providing hope and community to people who are searching for meaning during this difficult time.

The Tax Cuts and Jobs Act of 2017 doubled the standard deduction, which means that most Americans no longer itemize their deductions. Under the federal tax code, people can only claim a deduction for charitable contributions if they itemize their deductions. Since the amount of people who itemize deductions has shrunk, many nonprofits are concerned there would be a drop in donations, because of the lack of incentive to give. The Charitable Deduction is the only deduction for which the taxpayer receives no other material benefit (compared with the mortgage interest deduction or tuition deduction). 

The bipartisan Universal Giving Pandemic Response Act would make available, for tax years 2019 and 2020, an above-the-line deduction for charitable giving on federal income taxes valued at up to one-third of the standard deduction. This expands the current above-the-line deduction for charitable giving made available by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March. Individuals who have filed their 2019 tax returns without itemizing deductions may file an amended return to be eligible for the benefits provided by the Act. 

The economic impacts of COVID-19 will be dramatic across all sectors of our economy, which will in turn impact charitable contributions to nonprofit organizations. Without dramatic action, many of these nonprofits will forever close their doors. The ERLC strongly urges Congress to swiftly pass the bipartisan Universal Giving Pandemic Response Act to provide much needed financial relief to the charitable sector, and houses of worship.