WASHINGTON (CN) — Considering the case of two teachers fired from Catholic schools, the Supreme Court struggled on Monday with the boundaries of a doctrine that insulates religious institutions from lawsuits over hiring and firing decisions for certain types of employees.
“I’m struggling with where you draw the line and how much entanglement both sides are going to get us in here in deciding what’s an important enough person in a particular faith and how we avoid that difficulty,” Justice Neil Gorsuch said during a telephone hearing.
Across an hour and a half of oral arguments on Monday morning, the justices considered whether the so-called ministerial exception should prevent two teachers from bringing employment discrimination lawsuits against their schools.
The ministerial exception dates back to a Fourth Circuit case from 1985, and generally exempts religious groups from federal anti-discrimination laws when making hiring decisions. The Supreme Court first endorsed it in the 2012 case Hosanna-Tabor v. Equal Employment Opportunity Commission, but kept the formula determining who qualifies for the exemption loose.
In the cases at hand Monday, Agnes Morrissey-Berru sued Our Lady of Guadalupe School in Hermosa Beach, Calif., for age discrimination in 2016. A year earlier, in nearby Torrance, Calif., Kristen Biel sued St. James School because it did not renew her contract after she disclosed she had breast cancer and would need to take time off for treatment.
Our Lady of Guadalupe says Morrissey-Berru’s contract was not renewed because she did not properly implement a new reading program and an “experiment” creating a part-time job that allowed her to teach religion and social studies was unsuccessful.
Teachers at Our Lady of Guadalupe sign documents agreeing to align their teaching with “the values of Christian charity, temperance and tolerance” and to model the Catholic faith in school. They also participate in faculty prayer services, take the students to Mass and teach daily religion classes.
Biel says she was let go due to her diagnosis while the school says Biel’s classroom management was poor, necessitating weekly meetings to improve her performance.
Like Morrissey-Berru, Biel’s job at the school required her to teach religion, take part in prayer and attend Mass.
The schools won at the federal district court in both cases, but the Ninth Circuit reversed in Biel’s case in December 2018, saying the religious duties she performed were “limited to teaching religion from a book,” while the ministerial exception was meant to apply to people in roles of religious leadership. Biel died in 2019 and her husband is now the plaintiff in her case.
A later panel of the Ninth Circuit followed that holding in reversing the decision in Morrissey-Berru’s case. The Supreme Court agreed to hear the cases last December.
Arguing for the schools on Monday, Eric Rassbach with the Becket Fund for Religious Liberty told the justices it is crucial for religious groups to have broad discretion to say who is and who is not qualified to pass on their teachings to children.
“To have control over what they are doing and to be able to control the performance of this important religious function — conveying the faith to younger kids — that is a free exercise right that they absolutely have and should have,” Rassbach said.
Citing the holding in Hosanna-Tabor and Justice Samuel Alito’s concurrence in the case, Rassbach said the ministerial exception should apply to employees at school who perform important religious functions.
Assistant to the Solicitor General Morgan Ratner, who argued for the Justice Department in support of the schools, also pointed to the Hosanna-Tabor factors, saying courts should look at teaching, preaching, worshiping and performing rituals as signs that an employee is engaged in important religious functions.
Responding to hypotheticals from Justice Elena Kagan, Rassbach said his test would mean a math teacher who leads a short prayer at the beginning of every class would likely not be covered under the ministerial exception, while a nurse at a religious hospital who prays with and tends to the religious needs of sick patients likely would be.
The arguments from Rassbach and the government took fire from both the conservative and liberal wings of the bench.
Justice Ruth Bader Ginsburg worried the test Rassbach and the government proposed would leave no legal recourse for an employee fired from a religious institution for reporting sexual abuse. Justice Sonia Sotomayor said Rassbach’s proposal would exempt a broad swath of employees at religious institutions from a range of employment laws.
“So you’re asking for something broader than giving the schools the power to hire or fire certain kinds of people because of how they teach the religion or don’t teach it,” Sotomayor said. “And you haven’t explained to me why it’s necessary.”
But some of the more conservative justices, including Gorsuch, expressed concern that the test Rassbach was proposing would drag courts into the uncomfortable role of scrutinizing specific roles within different religions, an inquiry that could particularly disadvantage minority religions whose structures are unfamiliar.
“The next case is going to be a school in which a janitor takes a pledge, or the school bus driver, or the coach, and they all believe sincerely that they are ministers and you’re going to have us tell them no, your activities are too de minimus,” Gorsuch said.
To rectify this problem, O’Melveny & Myers attorney Jeffrey Fisher argued courts should look to more legalistic indicators that an employee is performing a religious function, such as their title or the training they receive to perform their job.
Fisher, representing Morrissey-Berru and Biel, drew a distinction between teachers who teach only religion and teachers who have religion in their curriculums alongside subjects they would otherwise teach at public school.
He said under his form of the ministerial exception, religious institutions still would have broad authority over hiring and firing decisions made for religious reasons, even if they must face lawsuits like the ones his clients brought.
“It is enough to give the schools in this case the ability to hire, fire, discipline and otherwise set the terms and conditions of employment according to their religious values,” Fisher said. “And it is too much and it would blow a hole in our nation’s civil rights laws and our employment laws in general to say that categorical immunity applies and so schools can pay people different amounts, use race, sex, other private characteristics even when they have nothing to do with the religion and the religious values at stake”
Some of the justices still had trouble with how courts would apply Fisher’s proposed test. Justice Alito said at a fundamental level, institutions like Catholic schools only exist to convey religious teaching and that looking into specific issues like the training they give their teachers would necessarily involve courts questioning how religious groups decide how to best carry out that function.
Justice Clarence Thomas said it seemed Fisher’s proposal would hold some types of employees do not fall under the ministerial exception even though their instruction would not be allowed in public schools.
“Don’t you think it’s a bit odd that things that would violate the establishment clause when done in a public school are not considered religious enough for free exercise protection when done in a parochial school?” Thomas said.
The justices are expected to rule in the case by the end of June, when the court’s current term ends.
Damian Cavaleri, a labor and employment partner at the firm Hoguet, Newman, Regal & Kenney, said it is difficult to forecast how the court might rule after Monday’s arguments. He said some justices clearly appeared troubled by the expansive exception Rassbach pressed, particularly when he said nurses who pray with patients might qualify under the exception.
At the same time, he said the justices appear to recognize a need for some legal protections for religious institutions when it comes to making decisions about certain types of employees.
“I think the court is put in a very tough position because there’s definite acknowledgement of the Hosanna-Tabor precedent,” Cavaleri said in an interview. “That being there is a need to have this ministerial exception for leaders in religious organizations. But the question is how do you define who that is and that’s why the court had so many different analogies and hypotheticals throughout today’s argument.”