Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, are difficult cases, which the Court will hear in a rare teleconferenced oral argument next Monday. They concern whether two Catholic school teachers qualify as “ministers,” and are therefore beyond the reach of workplace civil rights laws.
In Hosanna-Tabor v. EEOC (2012), the Supreme Court held that the First Amendment enshrines a “ministerial exemption” to anti-discrimination laws. As Chief Justice John Roberts explained for the Court in Hosanna-Tabor, the Constitution’s “Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”
This prohibition on laws regulating how religious groups choose their own ministers is so broad that it even permits such groups to engage in invidious discrimination. A church may fire a minister, for example, because that minister is black, or because they are gay, or because they’ve become pregnant, even though federal law prohibits race and pregnancy discrimination, and many states have laws barring anti-LGBTQ discrimination.
But it’s also far from clear who qualifies as a “minister,” which is where Biel and Morrissey-Berru come in. Though there are some religious leaders — priests, rabbis, imams, and the like — who rather obviously qualify as ministers, what about someone with significant religious duties who spends most of their time engaged in secular work? What about someone who may spend a few hours a week providing religious instruction, but who has no formal training in theology and no formal status as an ordained minister?
Both Biel and Morrissey-Berru involve Catholic school teachers who claim that they lost their jobs for illegitimate reasons. Kristen Biel was diagnosed with breast cancer and has since died. Her estate claims that her teaching contract was not renewed because of her cancer diagnosis, in violation of the Americans With Disabilities Act. The school claims she was removed because she “was not strict” enough in her classroom discipline.
Agnes Morrissey-Berru, meanwhile, says her contract was not renewed due to age discrimination. The school claims a mix of reasons for removing her, including financial concerns and concerns that her teaching had insufficient “academic rigor.”
But the real reason these women’s contracts were not renewed is not before the Supreme Court. The Court will confront whether Biel and Morrissey-Berru count as ministers — and therefore are beyond the reach of laws banning disability and age discrimination. And the question of whether either woman qualifies as a “minister” turns out to be devilishly hard to answer under the Supreme Court’s sole precedent dealing with the ministerial exception.
And, in case it is not yet clear, the stakes in these cases are profound. If an employee is classified as a “minister,” they effectively lose their rights to be free from discrimination in the workplace. If the Court permits large swaths of workers to be classified as “ministers,” it could open the floodgates to widespread discrimination.
The ministerial exception, briefly explained
The purpose of the ministerial exemption is to prevent the government from, in the words of Hosanna-Tabor, “depriving the church of control over the selection of those who will personify its beliefs.” Hosanna-Tabor, moreover, was a unanimous decision, so there is widespread consensus among both liberal and conservative judges that some form of ministerial exemption to civil rights laws is mandated by the Constitution.
But Hosanna-Tabor also does not offer clear guidance on who qualifies as a minister, in no small part because it was a fairly easy case.
Like Biel and Morrissey-Berru, Hosanna-Tabor involved a teacher at a religious school. In determining that this teacher did qualify as a minister, the Supreme Court laid out several factors that courts could consider when determining if a particular employee fits within the ministerial exception. Did the employer hold the employee out as a minister, and did the employee do the same? Did the employee have significant religious training? Did their job duties involve “important religious functions”?
All these factors pointed in one direction in Hosanna-Tabor. The plaintiff in that case was a teacher at a Lutheran school that gave her the title “Minister of Religion, Commissioned.” She’d completed “eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher,” and had to pass an examination administered by Lutheran faculty. She taught some religious subjects. She led her students in prayer, and she occasionally led chapel services. She’d also claimed a tax benefit for workers who earn their income “in the exercise of the ministry.”
Given these lopsided facts, the Supreme Court had little difficulty concluding that the Hosanna-Tabor plaintiff was a minister.
Biel and Morrissey-Berru, by contrast, involve much more marginal claims that two religious school teachers qualify as ministers. Both women received bachelor’s degrees in secular subjects, although Morrissey-Berru did take “catechist courses” provided by Los Angeles’s Catholic archdiocese. And both women were classified by their schools as “lay employees.”
Meanwhile, both women did provide some religious instruction to their students — though, at least in Biel’s case, her religious teaching duties appear to have been fairly minimal. According to the lawyers for her estate, Biel taught religion “for approximately thirty minutes a day, four days a week,” and she did so from a workbook mandated by her school.
The question in Biel and Morrissey-Berru, in other words, is whether the ministerial exemption applies when some but not all of the factors identified in Hosanna-Tabor also apply to the alleged ministers at the heart of those cases.
The opposing sides propose wildly different tests for determining who qualifies as a minister
The Catholic schools hoping to classify Biel and Morrissey-Berru as ministers, unsurprisingly, propose an expansive test for who fits within the ministerial exception: ”When an employee of a religious organization performs important religious functions,” the schools argue, “that is enough under Hosanna-Tabor for the ministerial exception to apply.”
And what qualifies as an “important religious function”? To answer this question, the schools look to Justice Samuel Alito’s concurring opinion in Hosanna-Tabor, which suggests that employees “who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation” all qualify as ministers.
Thus, if a schoolteacher teaches religious subjects, even for just a couple of hours a week, that is enough to qualify the teacher as a minister. A teacher may even qualify as a minister if they are required to lead their students in prayer, as these prayers could qualify as “important functions in worship services and in the performance of religious ceremonies and rituals.”
Lawyers for the two teachers, meanwhile, suggest a less expansive test. For one thing, they ask the Supreme Court to place much more emphasis on “formalistic, objective indicia of ministerial status” such as whether an employer explicitly designated a particular employee as a minister, and whether the employee had formal religious training. Among other things, this reliance on formal criteria offers a fair warning to employees who are subject to the ministerial exception.
As the lawyers for the two teachers write, “an employee should not discover on the day of her dismissal that her employer is entitled to fire her for becoming pregnant or sick—or just becoming older.”
Yet these lawyers also acknowledge that a test relying solely on formal criteria is insufficient. They concede that “in our pluralistic society, some churches have unorthodox hierarchies, and others may not use familiar titles or nomenclature.” Accordingly, they recognize that courts must pay some attention to the “religious functions” performed by a particular employee to determine if that employee is a minister.
One thing that becomes painfully clear, after reading both briefs, is that coming up with a satisfying way to sort out which employees should qualify as ministers is hard. As the plaintiffs’ lawyers acknowledge, a test that relies too heavily on formal criteria like whether a particular employee was ordained as a minister is not compatible with faiths that have “unorthodox hierarchies.”
Employers, moreover, could find it fairly easy to game such a test. If courts place a heavy emphasis on which employees are formally designated as ministers, that gives religious employers a strong incentive to designate every employee as a minister — in order to immunize itself from lawsuits alleging employment discrimination.
The schools’ proposed test, meanwhile, is even easier to game. Indeed, some religious denominations and conservative law firms have already published guides advising religious employers on how to game such a test.
Consider a manual published by the Southern Baptist Convention and the Alliance Defending Freedom. That manual, titled Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits, suggested that even employees such as a receptionist could be reclassified as “ministers” by a sufficiently creative employer:
When feasible, a religious organization should assign its employees duties that involve ministerial teaching, or other spiritual qualifications — duties that directly further the religious mission. For example, if a church receptionist answers the phone, the job description might detail how the receptionist is required to answer basic questions about the church’s faith, provide religious resources, or pray with callers. Consider requiring all employees to participate in devotional or prayer time, or to even lead these on occasion.
So the Supreme Court faces an unenviable task in Biel and Morrissey-Berru. It needs to offer lower courts some guidance on when an employee with a mix of secular and religious duties qualifies as a minister, and how much leeway religious employers should have to designate vast swaths of their workforce as ministers.
And the stakes here are high, since any employee classified as a minister loses their legal protections against invidious discrimination.