The Supreme Court handed down a number of high stakes decisions in its summer term, deciding issues ranging from disclosing Trump’s tax returns to deciding the fate of DACA recipients. One particular, though less notable, case that reached the court involved the question of whether the 1st Amendment’s religion clauses bar civil courts from adjudicating employment-discrimination claims brought against a religious employer. The case posing this question, Our Lady of Guadalupe School v Morrisey-Berru 591 U.S.        , involved a parochial school teacher who claimed that her religious employer violated the Age Discrimination Act by firing her. In a 7-2 decision, the High Court affirmatively decided that civil courts could NOT decide on employment discrimination matters, effectively dismissing the claim made by the employee, Agnes Morrisey-Berru, against her employer, Our Lady of Guadalupe School. In coming to its judgment, the Court applied a standard known as the Ministerial Exception, which bars the application of anti-discrimination laws to religious institutions oversight of “ministers,” a title that is typically applied to a high ranking church official who is tasked with “...helping the pastor to fulfill his mandate [in teaching] the Gospel” in the Lutheran Church.[1] 

The Exception itself, developed in the 2012 case Hosanna-Tabor v EEOC 565 U.S. 171, seeks to further a religious organization’s protection under the Free Exercise and Establishment Clauses. The Free Exercise Clause protects the right of individuals and religious organizations to express religious beliefs, while the Establishment Clause forbids the government from taking action(s) that favor one religion over another. The Ministerial Exception itself is rooted in the Free Exercise Clause and safeguards religious groups’ “freedom...to select their own ministers.”[2] Moreover, it prevents “government involvement in ecclesiastical decisions,” stemming from Establishment Clause fears.[3] When applied to First Amendment decisions, it provides religious institutions an affirmative defense when sued for discrimination by employees who qualify as “ministers.” In determining the application of the Exception, the Court in Hosanna-Tabor determined that the plaintiff, Cheryl Perich, qualified under the title since she was (1) given the formal title by her employer, (2) since she had undergone a significant degree of religious training to obtain that title, (3) since she held herself out as a minister in allowances and tax documents and, finally, (4) since she performed significant religious functions, including playing “a role in conveying the Church’s message and carrying out its mission.”[4] Justice Alito authored a concurrence in which he declined to apply the 4 requirements as a rigid formula for future decisions, owing to the heavy religious diversity in the United States. Before elaborating on why the doctrine was correctly applied in the recent Morrissey-Berru case, it is valuable to highlight the relevant history and jurisprudence behind the development of the Ministerial Exception Doctrine.

Owing to America’s extensive religious history and background, the Ministerial Exception is highly reflective of this nation’s religious ideals. A primary attitude towards religion, shared extensively amongst the founding generation, was the Lockean view of religious autonomy. As such, it has been recalled several times in cases dealing with how governments interact with religious organizations. Locke’s proposition, outlined in [A] Letter Concerning Toleration, asserts that “it is utterly necessary that we draw a precise boundary-line between (1) the affairs of civil government and (2) the affairs of religion,” and that religious institutions in a free society must be free to control their membership and internal affairs. Since a church is a “free society” of people “who voluntarily come together to worship God in a way that they think is acceptable to Him and effective in saving their souls,”[5] Locke reasoned that the government had no place in dictating otherwise.

Even in America’s early colonial history, Locke’s ideas were generally shared amongst theologians such as Roger Williams, famous for founding Rhode Island. In his piece, The Bloudy Tenent of Persecution for Cause of Conscience, Williams reinforced the Lockean perspective that “...it [is] best for the state [to remain removed from religion] because conformity in religious matters is impossible due to its personal nature, and state attempts to compel conformity would lead only to repression and civil discord.”[6]

When the original thirteen colonies gained independence from Britain, the Continental Congress continued the intellectual opposition towards interference in internal church affairs and governance. While there are several examples from this period illustrating this sentiment, the most prominent includes an incident in the early 1780s, where the French Minister to the United States petitioned Congress to approve a Catholic Bishop for America. In response, Congress passed a resolution directing Benjamin Franklin, who was then the ambassador to France, to notify the Vatican’s representatives that “the subject of [this] application...being purely spiritual...is without the jurisdiction and powers of Congress.”

During the disestablishment period, occurring from the time of the Constitutional Convention till 1833, state governments renounced ties to an officially sanctioned church, adopting Constitutional Amendments forbidding legislatures from engaging in such a practice. As such, the history of disestablishment suggests that religious institutions have the freedom to choose clergy and other high ranking officials, free of government interference. To summarize, the history of church separation in the United States purports to a “Constitutional order in which the institutions of religion – not ‘faith,’ ‘religion,’ [n]or ‘spirituality,’ but the ‘church’ – are distinct from, other than, and meaningfully independent of the institutions of government.”[7]

Alongside the historical evidence of a Ministerial Exception, there is an abundance of First Amendment jurisprudence before Hosanna-Tabor, supporting the existence of the doctrine. For instance, in 1871, the Court ruled in the case Watson v Jones 80 U.S. 679, that the First Amendment grants religious groups an “unquestioned freedom” to form organizations that assist in the “...expression and dissemination of any religious doctrine…”.[8] 

In the case McClure v Salvation Army (5th Cir. 1972), the 5th circuit majority codified an implicit type of “exception” for the first time. It held that “Congress did not intend, through nonspecific wording of...Title VII [of the Civil Rights Act], to regulate the employment relationship between church and minister” and that governments could not restrict “...the functions which accompany [the] selection [of church officials].”[9] 

Seven years later, the Supreme Court moved closer towards codifying an “exception” with the case Jones v Wolf 433 U.S. 595 (1979). The 5-4 majority held that while civil courts could decide church property disputes, in accordance with secular documents and “neutral (or secular) principles of law,” if faced with religious questions, civil courts would apply the rule of deference to religious authorities.[10]

With these three cases, along with historical First Amendment jurisprudence, it is no surprise that the court recognized the need to create an Exception for significant religious figures as it did in Hosanna-Tabor. Now that the complete record of the Ministerial Exception has been outlined, there is adequate material that can be used in examining why it was correctly applied to Morrisey-Berru.

A distinct area to begin with would be her religious qualifications, which enabled her to carry out significant religious functions as a teacher. Morrisey-Berru held “regular catechist certifications,” meaning that she was (and still technically is) “...a person of faith who is called by the parish or school community to hand on the tradition and teaching of the Catholic Church to others."[11] For this, it “demands that the catechist understand church doctrine and demonstrate appropriate teaching skills.” Based on the criteria required for obtaining the catechist certifications, there can be no doubt that Morrisey-Berru possesses the adequate training, knowledge and experience appropriate for instructing students in the Catholic faith and in abiding by the morals and vision of her religious employer.[12]

In addition to her catechist certifications, Morrisey-Berru also agreed to advance the Catholic faith through her commitment to instructing based on requirements from her employer. This is evidenced by the signature that she provided on a document provided by Our Lady of Guadalupe school, acknowledging that the “...mission of the School [was] to develop and promote a Catholic School Faith Community within the philosophy of Catholic education as implemented at the School, and the doctrines, laws, and norms of the Roman Catholic Church.”[13] Based on this factor, it is evident that Morrisey-Berru understood the serious nature of her role as a religious instructor, especially in regard to advancing the Church’s mission. Given her acknowledgement of the school’s educational mission, along with its objective in fostering effective religious instruction, there is ample evidence for arguing that the school should decide who would teach the faith. Moreover, it is the school’s expectation that the teacher would convey religious teachings and doctrines to her students which matters, regardless of whether the teacher holds herself out as a religious figure.

In seeking to “...develop and promote a Catholic School Faith Community…” and to “...incorporate Catholic values and teachings into her curriculum,”[14] Morrisey-Berru carried out several important religious responsibilities in her role as an educator. These included leading her students in daily prayer, facilitating and planning the liturgy for the school's monthly mass, disciplining her students in the proper form of praying, and, finally, instructing her students in the tenets of the Catholic religion. With all of these responsibilities considered, along with the catechist certifications that ensured her instruction met the church’s instructional standards, the Court agreed that Morrisey-Berru should be viewed within the confines of the Ministerial Exception.This is evidenced by her performance of important religious functions along with  efforts in maintaining her commitment towards teaching Catholic doctrine and faith.

 By presenting the underlying arguments for why Morrisey-Berru was correctly characterized as a “minister,” it is also valuable in elaborating on the dangers that would’ve arisen had she been exempt from the Exception. To start, it is important to understand the previous case that eventually reached the Supreme Court, Biel v St. James School (9th Cir. 2018), which was eventually combined with Our Lady of Guadalupe. In that case, the 9th circuit applied the rigid 4 factor approach outlined in Hosanna-Tabor (see above), ruling that Kristin Biel, a Catholic School teacher, only satisfied one of those factors. There are several reasons for why this ruling was harmful to religious practice in the U.S., necessitating correction from the high Court. For one, by requiring a Catholic organization’s employees to match the distinctive characteristics of the Lutheran school teacher in Hosanna-Tabor, the 9th Circuit, in essence, conditioned the availability of First Amendment protections on whether a religious group’s internal governance resembled that of the Lutheran Church. Moreover, the 9th Circuit effectively ignored the “functional approach” that five other circuit courts have used since Hosanna-Tabor, asking the significance of the functions performed by a church official. All five had implicitly ruled that “Hosanna-Tabor...neither limits the inquiry into those [four] considerations nor requires their [rigid] application in every case” and that “[T]he most important consideration, [in any case], is whether, and to what extent, the plaintiff ‘performed’ important religious functions...for [their religious organization].”[15]

The Ministerial Exception also serves to protect the right of religious organizations in evaluating its ministers and to decide who should be a minister based on the objectives of the religious organization. When the employee is a minister, it becomes inevitable that legitimate work-related considerations of the employee’s performance are based on performance within the ministry. As such, religious evaluations are heavily considered in determining the overall performance of the minister and whether to discipline or remove them. By leaving these evaluative decisions to a jury, where the members are unlikely to understand the complex religious elements of ministerial performance, neither the jury nor a judge can make competent decisions in evaluating the qualifications or job performance of church officials. This conflict becomes especially problematic for officials performing significant religious commitments. Justice Alito summarizes this point well in his concurring opinion from Hosanna-Tabor, stating that “...a religious body’s control over such ‘employees’ is an essential component of its freedom to speak its own voice, both to its own members and to the outside world.”[16] Moreover, if churches or religious organizations are unable to make internal decisions, especially those pertaining to religious performance, both the content and credibility of a religion’s message are undermined, as both components ultimately depend upon the “character and judgement of its teachers.”[17]

Sources:

1. Douglas Laycock, “Hosanna-Tabor and the Ministerial Exception,” Harvard Journal of Law & Public Policy 35, no. 3 (Summer 2012): 841

2. Gedicks, Frederick, and Michael McConnell. “The Free Exercise Clause,” n.d. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/265. 

3. Hosanna-Tabor v EEOC, 565 U.S. 171, 14 (2012)

4. 565 U.S. 171, 17 (2012)

5. Locke, John. “The Insincerity of the Zealots.” In Toleration, 3-5, 1689. 

6. Williams, Roger. In The Bloudy Tenent of Persecution for Cause of Conscience, 357–58, 1644.

7. Bradley, Gerald V. Essay. In Challenges to Religious Liberty in the Twenty-First Century, 79–80. Cambridge: Cambridge University Press, 2012. 

8. Watson v Jones, 80 U.S. 679, 728-729 (1871)

9. McClure v Salvation Army, 460 F.2d 553, 559-560 (5th Cir. 1972)

10. Jones v Wolf, 433 U.S 595, 69 (1979)

11. “The Catechist,” n.d. http://old.la-archdiocese.org/org/ore/cf/Pages/The-Catechist.aspx. 

12. Brief of Professor Douglas Laycok et al., Our Lady of Guadalupe v Morrisey-Berru, 591 U.S.    22 (2020) 

13. Laycock et al., 23 (2020)

14. Biel v St. James School, 911 F.3d 603, 17 (9th Cir. 2018)

15. Fratello v Archdiocese of NY, 863 F.3d 190, 202, 204-205 (2d Cir. 2017)

16. 565 U.S 171, 13 (2012)

17. 565 U.S 171, 4 (2012)