Does the First Amendment of the United States Constitution allow religious-based schools to “lawfully discriminate” against its employees such as religious teachers or other workers who are responsible for instructing the school’s students in the faith even though these employment actions would otherwise violate federal and state anti-discrimination laws in a non-religious setting? The disturbing answer is yes.
According to the United States Supreme Court’s recent decisions in Our Lady of Guadalupe School v. Agnes Morrissey-Berru and St. James School v. Biel, the First Amendment does not allow for judicial intervention in employment disputes between religious-based schools and many of its employees under the “ministerial exception” because it would permit Courts to regulate how a religious institution is able to fulfill its mission. This secures the First Amendment’s guarantee that religious institutions can “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
FACTS OF CASE
This decision addressed two similar cases, both coming from the Ninth Circuit Court of Appeals. The first case concerns Our Lady of Guadalupe School and Agnes Morrissey-Berru. Morrissey-Berru was a full-time teacher at Our Lady of Guadalupe School. She worked on one-year employment agreements that were reviewed for renewal annually by the pastor of the parish. These agreements stated the school’s “mission” which is to “develop and promote a Catholic School Faith Community.” Additionally, the agreement detailed Morrissey-Berru’s job duties and responsibilities as well as stated that the job should be performed with the school’s mission as an overriding commitment. Morrissey-Berru was responsible for teaching students all subjects, including a religion class. Under the agreement Morrissey-Berru was able to be terminated for cause for failing to perform the job duties or responsibilities or for “conduct that brings discredit upon the School or the Roman Catholic Church.” The agreement also required compliance with the faculty handbook which expressed similar expectations.
In 2014, Our Lady of Guadalupe School moved Morrissey-Berru from a full-time teacher position to a part-time teacher position. The following year they choose not to renew her contact at all. Morrissey-Berru then went to her EEOC office and alleged age discrimination against Our Lady of Guadalupe School, claiming that the only reason for her nonrenewal was because the School wanted to replace her with a younger teacher. Our Lady of Guadalupe responded that Morrissey-Berru was not renewed because of her classroom performance. Morrissey-Berru received her right to sue letter from the EEOC and filed suit. The School was granted summary judgment on the case by invoking the “ministerial exception” laid out in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. However, the Ninth Circuit Court of Appeals reversed finding that Morrissey-Berru did not qualify for the “ministerial exception.” The court focused on Morrissey-Berru not having the title “minister,” not holding herself out to the public as a religious leader or minister, and her limited formal religious training. Our Lady of Guadalupe appealed the Ninth Circuit decision and was granted review by the Supreme Court.
The second case involves the Estate of Kristen Biel and St. James School. Biel started for St. James School as a long-term substitute teacher and the following year she moved to a full-time teacher at the School. Biel and Morrissey-Berru’s employment agreements were almost identical. Both had an agreement for one year that was annually reviewed for renewal, although Biel’s hiring was instead approved by the school principal and not the pastor of the parish. Both taught all subjects including a class on religion. Both agreements had the same religious mission, the same requirement that the teacher must serve that mission, the same duties and responsibilities, and the same requirement to follow the faculty handbook, which was similar between the two schools.
After one year as a full-time teacher, St. James School chose not to renew Biel’s contract. Biel filed charges with the EEOC, and after receiving her right-to-sue letter filed suit. Biel alleged FMLA retaliation claiming that St. James School chose not to renew her employment agreement because she had requested a leave of absence to treat her breast cancer. St. James School replied that Biel was fired because of classroom performance and subsequently won the case in summary judgment under the ministerial exception. Again, the Ninth Circuit reversed and grounded its decision in Biel’s lack of credentials, training, and ministerial background when compared to the facts in Hosanna-Taylor. St. James School appealed the Ninth Circuit decision and was granted review by the Supreme Court.
LEGAL PRINCIPLES GOVERNING DECISION
The Ninth Circuit was overruled and the “ministerial exception” bars both Morrissey-Berru and Biel’s claims. The Court identified four relevant circumstances in Hosanna-Taylor and reaffirmed them in these cases. But, the Court refused to deem any one or combination of the relevant circumstances as essential and also emphasized that the ministerial exception analysis is not a rigid formula.
The first relevant circumstance is the title given to the employee. In Hosanna-Taylor, Perich, the plaintiff, had the title of “Minister of Religion, Commissioned.” The Court additionally emphasized that Perich was classified as a “called” teacher as opposed to a lay teacher and that Perich had to meet certain academic requirements for the position. Morrissey-Berru and Biel did not possess such a title as “minister.” However, the Court was unconvinced that the absence of the title was definitive for the exception. The Court instead focused on their titles as “Catholic elementary school teachers, which meant that they were their students’ primary teachers of religion. The concept of a teacher of religion is loaded with religious significance.” Our Lady of Guadalupe School v. Agnes Morrissey-Berru, 2020 U.S. LEXIS 3547 at 35-36. The Court classified Morrissey-Berru and Biel as “members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith.” Id. at 33. Additionally, both Morrissey-Berru and Biel’s employment was formally approved. The Court did not make any comment about the differing positions which approved Morrissey-Berru and Biel’s respective employment agreements.
The second relevant circumstance is the presence of formal religious training followed by a formal process of commissioning. “The significance of formal training must be evaluated in light of the age of the students taught and the judgment of a religious institution regarding the need for formal training.” Id. at 36. Thus, a first-grade religious teacher would require less formal training than a fifth-grade religious teacher in the ministerial exception analysis. However, it appears that if a teacher is hired by a religious school, that teacher’s training cannot be further questioned. The Court said, “the schools in question here thought that Morrissey-Berru and Biel had a sufficient understanding of Catholicism to teach their students, and judges have no warrant to second-guess that judgment or to impose their own credentialing requirement.” Id.
The third relevant circumstance is whether the employee holds themselves out as a minister of the Church by accepting the formal call to religious service. The Court stated that “the record also makes clear that Morrissey-Berru and Biel ‘held themselves out’ as authorities on religion to their students, and, by extension, their families.” Id. at n.29. However, the Court again seems to foreclose any further questioning regarding this circumstance. The Court explained, “in hiring a teacher to provide religious instruction, a religious school is very likely to try to select a person who meets this requirement, but insisting on this as a necessary condition would create a host of problems.” Id. at 38. Arguing whether a person practices the school’s respective religion “would require courts to delve into the sensitive question of what it means to be a ‘practicing’ member of a faith.” Id. at 39. This circumstance ultimately boils down to whether the employee has “‘good standing’ with the church” which was required in both Morrissey-Berru and Biel’s employment agreements. Id. at 39-40. In addition, whether the employee has claimed certain tax benefits is also relevant for this circumstance.
The fourth relevant circumstance is whether the job duties reflect a role in conveying the Church’s message and carrying out its mission. The Court found that both Morrissey-Berru and Biel “performed vital religious duties.” Id. at 33. “Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility.” Id. Morrissey-Berru and Biel were both “obligated to provide instruction about the Catholic faith, [and] they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.” Id. at 33-34. The Court emphasized that both Morrissey-Berru and Biel “prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities.” Id. at 34. “The schools’ definition and explanation of [Morrissey-Berru and Biel’s] roles is important” to the analysis. Id.
The Court reaffirmed that the ministerial exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Id. at 26 (quoting Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 199 (2012). However, while resisting a rigid formula for the ministerial exception the Court stated that “what matters, at the bottom, is what the employee does. And implicit in our decision in Hosanna-Taylor 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.” Id. at 29. The Court defined that the analysis should “take on all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the [ministerial] exception.” Id. at 35.
The Court stated that this decision reaffirms the First Amendment’s “protect[ion] [of] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Id. at 18 (quoting Hosanna-Tabor, 565 U.S. 171, 186 (2012)). The Court noted that the “selection of the individuals who play certain key roles” “protect[s] [religious institutions] autonomy with respect to internal management decisions that are essential to the institution’s central message.” Id. at 19.And “without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith.” Id.
RAMIFICATIONS OF DECISION ON EMPLOYEES OF RELIGIOUS-BASED SCHOOLS
While this decision addresses the importance of the separation between church and state long recognized under the First Amendment of the United Stated Constitution, this decision is disturbing in that is gives religious schools wide latitude to discriminate against its employees based upon otherwise prohibited and discriminatory characteristics such as age, sex, national origin, disability, use of FMLA, etc. when those employees job duties at the school involve praying with their students, attending Mass with the students, teaching a religion course, and/or preparing the children for their participation in other religious activities. So long as the religious-based school states that an employee who fits within these job characteristics was terminated or otherwise disciplined for failing to perform their job responsibilities consistently with the central tenants of a specific religion, then the school will likely have free reign to lawfully discriminate against its employees even if there is other evidence suggesting that an employee’s race, sex, national origin, age, or use of FMLA leave was a motivating factor for the school’s decision to take adverse actions against its employee including employment decisions such as termination.
As Justice Sonia Sotomayor noted in her dissenting opinion that was joined by Justice Ruth Bader Ginsburg, Justice Sotomayor lamented that, as a result of the court’s decision today, the teachers could be “fired for any reason,” even though they “taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.” Justice Sotomayor also warned about the broader implications of today’s ruling, suggesting that the decision could extend to “countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions.” And although the Supreme Court in its recent decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from state funding for private schools, “lamented a perceived ‘discrimination against religion,’” Justice Sotomayor alleged, “here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”