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Explainer: The Supreme Court reaffirms hiring protections for religious employers

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July 8, 2020

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.