L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority Office of the General Counsel
THE SUPREME COURT EXTENDS THE “MINISTERIAL EXCEPTION” TO LAY TEACHERS AT PRIVATE RELIGIOUS SCHOOLS IN OUR LADY OF GUADALUPE SCHOOL V. MORRISSEY-BERRU, 140 S. CT. 2049 (2020) Introduction As this month’s Feature Article highlights, there were some surprising moments in the U.S. Supreme Court’s most recent term (e.g., the expansion of Title VII protection to LGBTQ employees).1 But the term was also one in which the Court expanded protections afforded to religious institutions, including in the employment setting.2 One of these cases, Our Lady of Guadalupe School v. Morrissey-Berru, addressed whether the so-called “ministerial exception” precluded the assertion of discrimination claims by two lay teachers against their former employers, private Catholic elementary schools.3 This doctrine, first recognized by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,4 is a judicially created rule derived from the First Amendment’s Religious Clauses, which stands for the proposition that courts should “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”5 In Morrissey-Berru, the Court appears to have expanded the universe of private religious school employees whose employment-related claims will come within the ambit of the “ministerial exception.”6 Background The respondents in the case, Agnes Morrissey-Berru and the late Kristen Biel,7 worked as lay teachers at private Catholic elementary schools in California.8 Morrissey-Berru was initially moved from a full-time to a part-time teaching position, but the school eventually chose not to renew her contract.9 She alleged that “the school had demoted her and had failed to renew her contract so that it could replace her with a younger teacher” in violation of the Age Discrimination in Employment Act.10 Biel’s contract was likewise not renewed by her school, and she claimed that the reason was because “she had requested a leave of absence to obtain treatment for breast cancer” in violation of the Americans with Disabilities Act.11 The schools moved for summary judgment in each of the cases, invoking the “ministerial exception.” Although the lower courts granted the motions,12 the Ninth Circuit reversed in both cases, finding that the facts were not sufficiently similar to those in Hosanna-Tabor because Morrissey-Berru and Biel were not designated as “ministers,” nor did they have the requisite “credentials, training, [and] ministerial background” of the teacher in that case.13 The Court’s Ruling Although acknowledging that Morrissey-Berru and Biel “were not given the title of ‘minister’ and ha[d] less religious training than” the teacher in Hosanna-Tabor, the Court, in a 7-2 decision, nonetheless held “that their cases fall within the same rule that dictated [that] decision.”14 Justice Alito, writing for the majority, criticized the Ninth Circuit’s analysis, which he characterized as treating the circumstances deemed relevant in Hosanna-Tabor “as checklist items to be assessed and weighed
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against each other in every case,” which was “contrary to our admonition that we were not imposing any rigid formula’” and the Court’s instruction “to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception.”15 The Court emphasized that “[w]hat matters, at bottom, is what an employee does.”16 And the majority determined that, “at bottom,” both Morrissey-Berru and Biel “performed vital religious duties.”17 “Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught,” and their work was “evaluated to ensure that they were fulfilling that responsibility.”18 Both teachers were also “obligated to provide instruction about the Catholic faith” and were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith” by praying with them, attending Mass with them, “and prepared the children for their participation in other religious activities.”19 The Court concluded that “their core responsibilities” were essentially the same as the teacher in Hosanna-Tabor,20 and thus judicial intervention into the disputes “threaten[ed] the [schools’] independence in a way that the First Amendment does not allow.”21 Justice Sotomayor, joined by Justice Ginsburg, dissented. Justice Sotomayor admonished the majority for vastly expanding a narrow judgemade doctrine when Congress had already “crafted exceptions to protect religious autonomy” in anti-discrimination statutes.22 Justice Sotomayor also criticized the majority for essentially “rewriting” Hosanna-Tabor by invoking one of the concurrence’s ( Justice Alito’s) observation that “‘[w]hat matter[ed]’ was ‘the religious function that [the teacher] performed’ and her ‘functional status’” to guide its analysis.23 She found the majority’s new standard to have “reframed the ministerial exception as broadly as it can,” which resulted in “absolv[ing] religious institutions of any animus completely irrelevant to their religious beliefs or practices and all but forbid[ding] courts to inquire further about whether the employee is in fact a leader of the religion.”24 Conclusion On its face, the majority opinion appears to simply apply Hosanna-Tabor to a largely analogous factual scenario and clarify what is relevant to a court’s analysis in determining whether the “ministerial exception” is implicated. But critics, including the dissent, suggest that the “sweeping result” of the decision is to give religious employers a blank check “to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.”25 As with many Supreme Court opinions, the true import of this decision will have to await application by the lower courts. But one thing is clear—the decision is indicative of the current Supreme Court’s willingness to be “more broadly supportive of religious rights and organizations.”26
DICTA
(Continued on page 11) September 2020
