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Justices rightly defend churches’ autonomy on who teaches the Faith
The Supreme Court decided in Our Lady of Guadalupe School v. Morrissey-Berru on Wednesday that the First Amendment protects Catholic parochial schools from employment discrimination claims brought by teachers. The 7-2 ruling in an opinion by Justice Samuel Alito (joined by the other conservative members of the court as well as Justices Stephen Breyer and Elena Kagan) is a significant victory for religious freedom and a reaffirmation of the constitutional “ministerial exception” for religious employers.
In a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the court held unanimously that the First Amendment creates an exception to employment-related claims for religious institutions with regard to certain categories of employees. Hosanna-Tabor resolved an apparent conflict between, on the one hand, a narrow view of the Free Exercise Clause, according to which there is no right of religious exemption from general laws (including employment discrimination statutes) and, on the other hand, the right of churches to, in the words of a 1952 case, “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” All nine justices agreed in Hosanna-Tabor that, as to a teacher who was a called “minister” in the Lutheran Church and taught religion at a church school, the adjudication of an employment discrimination claim by civil courts would violate the First Amendment.
Hosanna-Tabor was clear that the scope of the ministerial exception is broader than merely ordained clergy. Few doubt that, for example, a Catholic diocese or an Orthodox Jewish synagogue cannot be sued for not ordaining women as priests or rabbis. But the scope of the ministerial exception is broader than those holding clerical status and includes employees holding important positions in a religious institution. Hosanna-Tabor (and then lower courts applying it) looked to such factors as the employee’s title, training and duties, but harder cases inevitably would emerge about who does or does not count as a “minister.”
In the consolidated cases decided by the court Wednesday, the dismissed teachers worked at Catholic grade schools in Southern California. As part of their jobs, they led class prayers, taught religion as well as other subjects, and prepared students for the sacraments. In deciding that their employment claims could go forward in litigation against the schools, the U.S. Court of Appeals for the 9th Circuit focused narrowly (and now we know mistakenly) on the fact that the teachers did not have a formal ministerial title in the Catholic Church and had minimal formal religious training for their positions.
Writing for the court, Justice Alito clarified the holding of Hosanna-Tabor and the test for when an employee is a minister. Justice Alito, joined by Justice Elena Kagan, had written a concurrence in Hosanna-Tabor focusing on the functions performed by an employee that anticipates Wednesday’s opinion. In Our Lady of Guadalupe School, the court clarifies that the religious duties or functions performed by an employee are the most relevant consideration, and teachers in a Catholic grade school clearly perform a religious function. As Justice Alito puts it in his decision: “What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor 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.” Even the term “minister” is itself misleading insofar as it implies an unduly narrow focus on whether someone has the right title to qualify for the ministerial exception, as well as using a term that is most at home in Protestant Christian churches and fails to account for the role of teachers in non-Christian religious traditions.
The cases decided Wednesday were, it turns out, easy to resolve because the teachers obviously had a religious function within the Catholic grade schools. Indeed, as Justice Clarence Thomas observed during oral argument, what the teachers did at these schools (lead prayers, teach Catholic doctrine, take students to Mass) would violate the Establishment Clause were they at a public school, and it seems odd that activity that is “too religious” in violation of the Establishment Clause is “not religious enough” for purposes of the ministerial exception. Harder cases will continue to be litigated in the courts, including high school teachers who teach only secular subjects and employees in religious health care and social service settings.
Leading church-state scholars such as Notre Dame’s Richard Garnett have long argued that the First Amendment protects an institutional right of church autonomy, and today’s decision speaks expressly of a “general principle of church autonomy,” according to Justice Alito. The concept of church autonomy underscores that Wednesday’s decision is about rightful authority about religious matters between religious institutions and the state. The First Amendment clearly strikes a balance on the side of churches in determining who will teach the faith.
Michael P. Moreland is a professor of law and religion and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University.