Our Lady of Guadalupe School v. Morrissey-Berru is a difficult case, which raises profound questions about how much control a religious institution has over the individuals who instruct others in the faith.
But the Court’s resolution of Morrissey-Berru is also a fairly maximalist decision. The upshot of Justice Samuel Alito’s opinion for a 7-2 Court is that thousands of teachers at religious schools are no longer protected by anti-discrimination laws. If one of them is fired for being Black, or gay, or a woman, the law may do nothing to intervene.
The case involves the “ministerial exception” to civil rights laws. As a general rule, religious institutions have total control over whom they employ as “ministers.” That means that if a church wants to fire its preacher because of that preacher’s race or gender, it may do so, even though such discrimination ordinarily is illegal.
As Alito explains, the Constitution protects “the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Implicit in this right is a certain “autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.”
Yet while the Supreme Court held in Hosanna-Tabor v. EEOC (2012) that “ministers” are beyond the reach of civil rights laws, it provided only the vaguest guidelines on who qualifies as a “minister.” Alito’s opinion in Morrissey-Berru adds some meat to those dry bones. Under his opinion, “when a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
Thus, a teacher at a religious school whose duties include religious instruction qualifies as a “minister,” and is therefore unprotected by anti-discrimination law.
The plaintiffs in Morrissey-Berru had fairly minimal religious duties
One upshot of Morrissey-Berru is that the ministerial exception attaches even to teachers who spend the bulk of their time engaged in secular instruction. The case concerns two Catholic school teachers, Agnes Morrissey-Berru and Kristen Biel, who claim they were fired for illegitimate reasons.
Morrissey-Berru alleges age discrimination, while Biel’s estate claims that she illegally lost her job after she “requested a leave of absence to obtain treatment for breast cancer” — she eventually died of the disease. The schools, meanwhile, claim that both women’s contracts were not renewed due to legitimate concerns about their job performance.
But these factual disputes will never be resolved, because the ministerial exception places both women beyond the reach of civil rights laws such as the Age Discrimination in Employment Act and the Americans With Disabilities Act.
Both women were elementary school teachers at Catholic schools. Like most elementary school teachers, they taught a broad range of subjects rather than specializing in any one area. Most of their time was spent on secular topics such as arithmetic or grammar, but both women also spent some time instructing their students in the Catholic faith. Biel, for example, was “required to teach religion for 200 minutes each week” and administer a weekly test on religious subjects.
Under Alito’s decision, this fairly small amount of religious instruction — a little more than three hours a week — was enough to trigger the ministerial exception. “Implicit in our decision in Hosanna-Tabor,” Alito writes, “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.”
It’s unclear how far the ministerial exception will extend to non-teachers
One upshot of Hosanna-Tabor is that many teachers — perhaps all teachers in religious schools with good lawyers — are no longer protected from discrimination. Teachers who already provide religious instruction are now overwhelmingly likely to be classified as “ministers,” and religious schools could potentially bring all of their teachers within the ministerial exception’s umbrella by assigning them new religious duties.
But what of other employees of religious institutions? As Justice Sonia Sotomayor writes in dissent, “the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions” are now uncertain.
Alito’s opinion is vague regarding these employees, stating that courts must “take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception.” But its heavy focus on individuals who teach religion suggests that the ministerial exception could sweep quite broadly.
Here’s a personal example: Starting when I was 16, I had a summer job as a junior counselor at a Christian-identified summer camp. I spent the bulk of my time on entirely secular activities — like playing capture the flag or teaching students to refer to the rear end of a boat as the “stern.” But a couple of evenings a week, I would lead a group of children in a 10-minute “devotion” and close that devotion with a prayer.
In effect, I spent 20 minutes a week providing religious instruction to these children.
Was that enough to qualify my 16-year-old self as a “minister”? Morrissey-Berru, with its emphasis on employees tasked with “educating young people in their faith,” suggests that I very well may have qualified, as could many other workers with minimal religious duties.
Meanwhile, it is likely that at least some employers will try to game Morrissey-Berru to immunize themselves from liability for discrimination. Consider, for example, a 2015 manual called Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits, which was published by the Southern Baptist Convention and a leading Christian-right law firm. That manual advised religious employers to assign religious duties to low-level employees in an attempt to bring them under the ministerial exception:
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.
It is still unclear whether a receptionist, who is told to “answer basic questions about the church’s faith” in a bad-faith attempt to strip that receptionist of their civil rights, would qualify as a minister. Alito’s opinion does instruct courts to “take all relevant circumstances into account” when determining “whether each particular position implicated the fundamental purpose of the exception.”
But, at the very least, Morrissey-Berru is likely to plunge victims of such tactics into months — or even years — of expensive litigation just to determine whether they have any rights at all.