The U.S. Supreme Court has again heard oral arguments on the freedom of churches and other religious institutions to make employment decisions apart from government intrusion.
The justices pondered the legal conflicts between Catholic schools and two former teachers May 11, during the second week in which oral arguments have been held by means of a telephone conference amid the COVID-19 pandemic.
The high court ruled unanimously in 2012 a “ministerial exception” exists that enables churches and other religious groups to hire and fire based on their beliefs. That case – Hosanna-Tabor v. EEOC – involved the termination of teachers by religious schools, as do the two cases consolidated by the Supreme Court for arguments and a decision.
In the new cases, two Catholic schools in the Archdiocese of Los Angeles chose not to renew contracts for two fifth-grade teachers based on what they said was poor performance. The teachers brought suit against the schools, one alleging age discrimination and the other claiming disability discrimination based on chemotherapy treatments that caused her to take time off.
In both suits, federal judges ruled in favor of the schools based on the Supreme Court’s 2012 decision, but the Ninth Circuit Court of Appeals in San Francisco reversed the opinions, ruling the teachers did not qualify under the “ministerial exception.”
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) signed onto a friend-of-the-court brief with the high court in support of the schools’ position.
ERLC President Russell Moore expressed hope the May 11 arguments “will lead to a strong rebuke by the justices to the Ninth Circuit’s error.”
“We don’t need a federal judiciary with the power to decide arbitrarily which theological beliefs or faith-based organizational structures deserve First Amendment protections,” Moore said in written comments. “As we argued in our brief for this case, constraining the ministerial exception would have chilling and far-reaching effects on religious life in America.”
Eric Rassbach, who argued before the justices on behalf of the schools, was optimistic afterward.
It was a “really great sign” that there “seemed to be a pretty broad agreement among the justices that it is important to protect the freedom of religious groups to choose who teaches the faith to the next generation,” Rassbach said in a telephone news conference.
Rassbach is a vice president and senior counsel for Becket, a leading advocacy organization for religious freedom.
Both Rassbach and Morgan Ratner, assistant to the U.S. Solicitor General, told the justices the function of a religious institution’s employee is vital in considering the “ministerial exception.”
Associate Justice Elena Kagan gave Rassbach what she described as a “too-long list of hypotheticals” and asked him to say briefly whether each would qualify for the exception. They included a math teacher who is told by a school to “embody Jewish values and infuse instruction with Jewish values,” a nurse at a Catholic hospital who prays with patients and is expected to care for their spiritual needs and a church organist who selects the hymns to be used in worship services.
She asked Rassbach what the justices “are supposed to draw” from the various hypotheticals.
“[W]hat is it that this person is doing, performing on behalf of the religious body?” Rassbach said. “[W]hat is the function that they’re performing on behalf of that body?”
It is things like “preaching, teaching, guiding, communicating … that are crucial to what you do as a religious organization,” he told Kagan.
He took encouragement from the fact that many questions from the justices stretched beyond the teachers involved to the limits of the “ministerial exception,” Rassbach told reporters later. “I think the fact that they were focused more on where the outer edges of the doctrine are rather than this particular heartland case to me seemed like a good sign also.”
Urging the justices to take a “function-focused approach,” Ratner said, “The touchstone of the ‘ministerial exception’ should be whether an employee performs important religious functions. That’s because function reflects the First Amendment interest at stake and because, critically, it’s more neutral among different religions.”
Since the teachers in these cases “were the churches’ primary agents for teaching the Catholic faith to fifth graders, teaching them for hours a week, much more than parish priests, they fall within the ‘ministerial exception’ immunity,” Rassbach said.
“[I]t’s inherently entangling to transfer authority and control over a position that teaches the faith devotionally from church [to] state.”
Jeffrey Fisher, who represented the teachers, told the justices one of the factors they should heed “is the formal title of the individual but also things like the individual’s training, whether the individual has to be of the same religion. …”
He said, “[I]t 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 religion and the religious values at stake.”
The friend-of-the-court brief signed onto by the ERLC and other organizations said it has always been “well settled that when religious organizations make decisions about matters of faith, doctrine, or internal governance, the Religion Clauses of the First Amendment bar the government from second-guessing those choices.”
The First Amendment’s religion clauses prohibit government establishment of religion and protect the free exercise of religion.
A decision in the consolidated cases – Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel – is expected before the high court adjourns this summer.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)