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The Supreme Court seems likely to give religious employers a broad ability to discriminate

Justice Samuel Alito | Chip Somodevilla/Getty Images

The Supreme Court’s “ministerial exception” case appears likely to end in victory for the religious right.

The Supreme Court appeared divided along ideological lines on Monday in a pair of cases asking when religious employers can defy state or federal laws banning discrimination.

Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, are difficult cases asking whether two Catholic school teachers qualify as “ministers,” a designation that effectively strips them of many of their civil rights in the workplace.

Both cases 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.

Another teacher, Agnes Morrissey-Berru, 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.”

In Hosanna-Tabor v. EEOC (2012), the Supreme Court unanimously held that the First Amendment enshrines a “ministerial exemption” to anti-discrimination laws. As the Court explained in that case, 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.”

Yet, while Hosanna-Tabor established that “ministers” are broadly exempt from laws protecting them against discrimination, that case offered only minimal guidance about who qualifies as a minister. Morrissey-Berru and Biel give the Supreme Court a chance to better define which employees fit within the ministerial exception.

At least two members of the Supreme Court, Justices Clarence Thomas and Neil Gorsuch, staked out the position that a religious employer should more or less be allowed to determine on its own which employees count as ministers.

Meanwhile, some members of the Court’s liberal minority appeared concerned that Hosanna-Tabor went too far in exempting ministers from literally all anti-discrimination laws. The “breadth of the exemption is staggering,” Justice Ruth Bader Ginsburg remarked at one point during Monday’s oral argument. She worried it would allow someone to be fired for blowing the whistle on a priest engaged in sexual misconduct, or on a school principal who embezzled church funds.

At the very least, it appears fairly likely that the Supreme Court’s Republican majority will adopt a broad definition of who qualifies as a minister, which was originally proposed by Justice Samuel Alito in Hosanna-Tabor. Under this test, 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”

That test could lead to hundreds of thousands of workers being stripped of their civil rights.

Defining who qualifies as a minister is hard

Hosanna-Tabor is the Supreme Court’s only decision laying out who qualifies as a minister, and that case provides little guidance because there was an overwhelming weight of evidence in that case suggesting that its plaintiff was, indeed, a minister. In Hosanna-Tabor, the Court laid out several factors that courts should 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 of these factors pointed in the same direction in Hosanna-Tabor. The plaintiff in that case was a teacher at a Lutheran school with significant training in Lutheran teachings and ministry. She taught some religious subjects. The school gave her the job title of “Minister of Religion, Commissioned,” and she claimed a tax benefit that applies to workers who earn their income “in the exercise of the ministry.”

In Biel and Morrissey-Berru, by contrast, these factors point in different directions. Both involve teachers who spent some time every week teaching Catholic religion to their students. But both of these teachers have secular degrees (although one did take “catechist courses” provided by Los Angeles’s Catholic archdiocese). Both women were also classified by their schools as “lay employees.”

Nevertheless, Eric Rassbach, the lawyer for the two Catholic schools, claimed that this mix of factors is enough to qualify both teachers as “ministers.” According to Rassbach, it is enough that the teachers performed “important religious functions” by spending a couple, or maybe even several, hours a week teaching religious subjects to their students.

But what makes a religious function “important,” and who gets to decide that question? At least four members of the Court, Chief Justice John Roberts, Thomas, Gorsuch, and Justice Brett Kavanaugh all raised concerns about whether secular courts are even capable of making that determination.

Thomas and Gorsuch, for their part, answered this question by suggesting that courts should determine who qualifies as a minister by just deferring to religious employers. As Gorsuch put it, if an employer has a “sincerely held religious belief about who is a minister” then that belief “should control.” That approach has the advantage of making it easy for judges to decide ministerial exception cases, but it would also give some employers the power to exempt themselves entirely from anti-discrimination laws.

Meanwhile, several other justices struggled with the question of just how many religious duties an employee must take on before they qualify as a minister. Justice Elena Kagan, for example, appeared to believe that a full-time religion teacher — one who teaches religion and nothing else — would qualify as a minister. But what about a teacher who spends half their time teaching religion and the other half teaching math? What about a teacher, like the plaintiff in Biel, who spends maybe two hours a week teaching religion, and the rest of their time on secular topics?

Hosanna-Tabor doesn’t answer these questions. And the justices’ own answers appeared to hinge more on whether they view protecting religious employers or defending anti-discrimination laws as a more important value.

An imprecise test will be easy to game.

Jeffrey Fisher, the lawyer representing the two teachers, suggests that the Court should apply a fairly formalistic test that places a great deal of weight on factors such as whether the employer held a particular employee out as a “minister.” That test would help his clients, who were formally classified as lay teachers. But, as Roberts noted at one point, such a test would be fairly easy to game — an employer could just classify all of its employees as ministers.

The same could also be said about a test that emphasizes whether an employee performs “important religious functions.” Consider, for example, a manual published by the Southern Baptist Convention and the Alliance Defending Freedom, which advised employers on how to broadly classify their employees as “ministers” in order to evade civil rights laws.

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.

Meanwhile, while it is far from clear that most of the justices agree with Thomas and Gorsuch’s call for extreme deference to religious employers, both Alito and Kavanaugh rallied behind a test that would still give employers broad leeway to reclassify employees as ministers by assigning religious duties to those employees.

According to Alito, the task of teaching religion to a younger generation is “central” to religious faith — a position which seems to suggest that if an employee spends any time teaching religion, then that is enough for them to qualify as a minister. A camp counselor who spends maybe half-an-hour a week teaching religion to a group of children could potentially qualify.

Such a test, in other words, gives religious employers a strong incentive to assign religious teaching duties to as many employees as possible.

Morrissey-Berru and Biel are difficult cases. They involve an area of the law where the Supreme Court has offered little previous guidance. And they present difficult moral questions about how much we value a religious group’s ability to select the people who teach its faith, and whether we value that ability so much that we are willing to toss aside very basic civil rights.

On Monday, many of the justices appeared to view these cases as fairly one-sided, and they appeared to view the goal of protecting religious groups as paramount. That view does not simply have profound implications for the employees in Biel and Morrissey-Berru. It suggests that religious conservatives are likely to prevail in other cases asking the Court to weigh whether civil rights laws apply to people who object to those laws on religious grounds.

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