Should anti-discrimination laws require a religious school to employ teachers that it believes are compromising its religious mission? That’s the central question in two upcoming Supreme Court cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel.
Both cases will hinge on how the court interprets the “ministerial exception” it first applied in 2012’s Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. In that case, the court unanimously held that religious organizations have the freedom to “select their own ministers” under the First Amendment’s Free Exercise Clause and that the government is “forbidden from appointing ministers” under the First Amendment’s Establishment Clause.
Both critics and supporters of the 2012 decision recognized its broad scope. The case involved a teacher, Cheryl Perich. Perich taught a range of subjects including math, language arts, social studies, science, gym, art, and music. She was also responsible for teaching religion classes and leading students in prayer. After she went on leave for medical disability—narcolepsey—prior to the start of the 2004-05 academic year, the school hired a replacement. When she tried to return to work in January, the school informed Perich that it had another teacher under contract for the year. She then threatened to sue the school. Significantly, the school, which is part of the Missouri Lutheran Synod, makes a distinction between “called” and “lay” teachers. Called teachers must be Lutheran, are considered called by God, and are given the title “Minister of Religion.” Perich was a called teacher.
After Perich’s threat of legal action, the church congregation rescinded her call and fired her. Perich then filed a claim with the Equal Employment Opportunity Commission claiming her rights under the Americans with Disabilities Act had been violated. The court sided with the church and school. The justices held that siding with the EEOC and Perich would be tantamount to forcing a church to “accept a minister it does not want.” The First Amendment guarantees that “the authority to select and control who will minister to the faithful is the church’s alone,” the Supreme Court ruled. Despite the broad sweep of the ruling, the court explicitly declined to offer a “rigid formula” for deciding who counts as a minister. That created an opening for the controversies in Morrissey-Berru and Beil.
Both cases involve teachers at Roman Catholic schools in the Los Angeles Archdiocese. Agnes Morrissey-Berru was a fifth-grade teacher who failed to implement new programs designed to improve the academic rigor of Our Lady of Guadalupe School. After being fired in 2015, she sued claiming age discrimination. She lost on a motion for summary judgment in the district court, but a Ninth Circuit panel reversed and then denied the school’s petition for a rehearing. The appellate panel said that even though Morrissey-Berru had “significant religious responsibilities,” her position was not sufficiently religious to warrant First Amendment protection for the school. Similarly, Kristen Biel was a fifth-grade teacher, in fact the only fifth-grade teacher, at St. James School. Biel taught weekly religion classes, supervised students during Mass, and was responsible for inculcating the Catholic faith throughout the entire curriculum. She was hired in 2013, but the school quickly became concerned about her performance. After providing unsuccessful training to help her improve, the school declined to renew Biel’s contract for the 2014-15 school year, shortly after she told the principal she had breast cancer. Biel sued, claiming the school violated her rights under the Americans with Disabilities Act. Like Morrissey-Berru, Biel lost at the district court level but succeeded before a Ninth Circuit panel.
In both cases, the panels relied on an alleged Hosanna-Tabor standard, essentially holding that because neither teacher was required to have the same religious “credentials, training, or ministerial background” (as Perich had been), they could not be considered ministers despite their religious duties. As well, there was “nothing ‘religious’ reflected” in their titles of teacher.
Two problems immediately emerge from the Ninth Circuit’s decisions. First, the Supreme Court had explicitly said in Hosanna-Tabor that it was not offering a “rigid formula” for determining who would count as a minister, yet the Ninth Circuit divined one anyway. Second, by invoking the same standards used to determine that Perich was a minister under Lutheran doctrine, the Ninth Circuit was requiring the Catholic church to mimic Lutheran policy. While many Protestant denominations use the title minister quite widely, it is rarely used in other in other faiths. Certainly, religious freedom cannot mean that civil courts can tell the Catholic Church to follow the same principles and nomenclature as Lutherans. Decisions over religious titles, which are central to church government, are decisions about religious doctrine. It doesn’t take a PhD in religious history to know that there have been some disagreements, even wars, over those kinds of questions between Catholics and Protestants for a few hundred years now.
Thus, at the heart of these cases is the right of religious institutions to decide who qualifies to teach their faith. Naturally, some believe that there will be a parade of horribles if the Supreme Court sides with the schools. Most significantly, religious institutions might start labeling employees performing secular functions as ministers, thus immunizing themselves from anti-discrimination laws. However, the alternative seems worse, because it would allow the government, in this case courts, to dictate religious doctrine. One expects the Supreme Court will decline to do so.
In fact, since there is no contradictory decision from another circuit, accepting these cases indicates that at least four justices of the Supreme Court want to clarify its ruling in Hosanna-Tabor and to remind lower court judges that other churches and schools don’t have to ape Lutheranism when determining who counts as a minister. A date for an oral argument in the cases has not yet been set.
Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.
