Sketch by Arthur Lien of the justices participating in remote, telephone argumnts

Supreme Court Weighs Providing Broad Exception from Employment Discrimination Laws to Religious Institutions

The Supreme Court heard oral arguments in consolidated cases this morning by telephone about former teachers who say their religious employer discriminated against them on the basis of age and disability. The difficult question before the Court is how wide of a scope so-called “ministerial exceptions” can be afforded to religious institutions.

In 2012, the Supreme Court unanimously held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that there is a ministerial exception which prevents employees from bringing an employment discrimination lawsuit against their religious employers. The concept here is that the Free Exercise Clause of the First Amendment permits religious institutions to have control over who is going to be the leaders and teachers of the faith, and the Establishment Clause prevents the government from interfering in a religious institution’s affairs.

There was a lot of confusion among most justices about which type of employees would be included in the exception and what religious functions are considered “important.” Justice Thomas — the most conservative justice — said he was “perplexed” on where to draw the line. He wondered if a chemistry teacher who starts class with a Hail Mary would be covered by the exception. “How does a secular court determine what is an ‘important duty or function?’” Justices Kagan and Kavanaugh, the second appointments to the high court by Obama and Trump respectively, echoed the same confusion. The counsel representing the schools, the petitioners, argued “core” functions and responsibilities is the correct definition and a coach who says a prayer before a game and an English teacher who sprinkles in references to Matthew 25 does not count.

In the case from eight years ago, the justices did not come up with a strict standard to evaluate whether employees are covered by the ministerial exception but they said four factors should be considered: their title, whether the institution considered her a minister, whether she considered herself a minister, and whether her job required her to carry out important religious functions.

The teachers, the respondents, argued an evaluation using only “important religious functions” could be too broad and sweep in too many employees. They say an exception under that standard would be a complete exemption from civil rights laws. Justice Ginsburg echoed that concern, saying the scope of the exception would be “staggering.” The teachers also believe titles are important because it sends a clear message about who has authority at the institution, but that prompted some pushback. Chief Justice Roberts questioned emphasizing the use of titles in evaluating who is covered by the exception because not all faiths use the same titles and they can be manipulated — as in an institution could give everybody the title of minister just to shield them. Justice Alito was also still searching for a concrete way to define who is included in the exception. “Suppose you have two people who do the same thing but one has a title and one doesn’t,” he pondered to the schools’ counsel. Justice Kavanaugh seemed concerned with emphasizing the use of titles in the Court’s test because it could have a harmful effect on minority religions, such as Jewish or Muslim faiths.

Justices Kagan, Ginsburg, and the Chief also asked about teachers who do not align with the same the faith as the institution. The schools said Hosanna-Tabor rejected the idea that there is an issue with non-Lutherans teaching Lutheran doctrine but said religious bodies should get to decide who best performs those “important religious functions.” The teachers argued someone who isn’t a member of that faith cannot be considered be a minister of that religion.

Justice Ruth Bader Ginsburg, when speaking to the teachers’ counsel, sounded concerned with the idea that someone could be fired for nothing to do with religion like having chemotherapy treatment. Their counsel thought the ministerial exception should only matter when the hiring or firing is irrelevant to religion.

Justice Gorsuch was quite troubled by the Court getting involved in these affairs. He said in past First Amendment and Religious Freedom Restoration Act (RFRA) cases, courts haven’t inquired about what is important to religious organizations. He wondered to both the counsel to the teachers and schools whether it is appropriate for courts to make determinations on who qualifies as a minister and is covered by the exception. The attorney for the teachers agreed there are entanglement problems. He said the Court shouldn’t second guess what religious institutions define as important religious functions, but believes that isn’t the right test here. He thinks the solution is look to objective factors like those presented in Hosanna-Tabor. The other side said these entanglements are unfortunate but unavoidable. Justice Sotomayor also lamented about the position the Court is in and said it is inappropriate for judges to extend the exemption, saying it should be the job of Congress.

Still, while several justices seemed dumbfounded at what the correct test is and who is covered by the exception, Justices Alito and Thomas attempted to poke holes at the teachers’ argument. Justice Thomas, in his deep baritone voice, asked their counsel, “Would exactly what these teachers doing [i.e. taking them to a worship service] be a violation of the Establishment Clause if they did it in public school? Isn’t it odd that things which would violate the Establishment Clause in public schools aren’t considered religious enough for Free Exercise protection when done in a parochial school?” Justice Alito, steering the conversation back to schools’ broad authority, said the function of teaching a religion to new generations is central, otherwise students would go to public school and pay no tuition.

Today was the latest in a number of cases which pit church and state against each other. The ruling in these cases — Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Darryl Biel — likely will not be handed down until the end of June.