Argument analysis: Justices divided in debate over “ministerial exception”

This morning the Supreme Court heard oral argument in a pair of cases filed by two teachers in southern California, who sued the Catholic schools where they worked after they learned that their contracts wouldn’t be renewed. The Catholic schools have urged the courts to throw out the teachers’ cases, relying on a doctrine known as the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination. In 2012, the Supreme Court ruled that the exception prohibited a lawsuit filed by a teacher at a Lutheran school who was also an ordained minister, but it expressly declined to provide a formula for courts to use to determine whether other employees qualify as ministers in future cases. The 2012 ruling was unanimous, but after over an hour and a half of oral argument today, it appeared less likely that the justices’ eventual decision in today’s cases would be.

One of the teachers, Kristen Biel, taught fifth grade at St. James School in Torrance, California, beginning in 2013. When the school did not renew her contract for the following year, Biel – who had told the school that she was being treated for breast cancer the following year – filed a lawsuit in federal court alleging that she had been the victim of disability discrimination. Agnes Morrissey-Berru, who taught fifth grade at Our Lady of Guadalupe School in Hermosa Beach, California, from 1999 until 2015, filed an age discrimination lawsuit when she learned that her contract would not be renewed. In both cases, the schools argued, and the federal trial courts agreed, that the women’s suits were barred by the ministerial exception. But the U.S. Court of Appeals for the 9th Circuit reinstated the suits, concluding that the ministerial exception normally requires the employee to play a “religious leadership” role, which in its view Biel and Morrissey-Berru did not.

Arguing for the schools, lawyer Eric Rassbach told the justices that, if the separation of church and state means anything, it means that the government cannot interfere with a church’s decisions about who is authorized to teach its religion. Because the teachers in these cases were the “primary agents” for teaching the Catholic faith to students “for hours on end over the course of a week,” Rassbach emphasized, they fall within the ministerial exception and their lawsuits should be dismissed. By contrast, Rassbach suggested, the teachers have urged the court to focus on their title, which would elevate “form over function” and “hopelessly entangle” courts in the affairs of religious institutions.

Some justices expressed concern that the schools’ interpretation of the exception would sweep too broadly. Justice Ruth Bader Ginsburg asked Rassbach to explain who would not be a minister in his clients’ view.

Rassbach responded that any school employees who were not performing important religious functions would not be covered by the exception – for example, a janitor or an IT professional. A coach, Rassbach suggested, would not necessarily be regarded as a minister unless he was performing religious functions.

Ginsburg pushed back, asking about a scenario in which a coach leads the players in an opening prayer.

If the only religious activity in which the coach engages is the opening prayer, Rassbach suggested, then the coach would not be a minister, because the religious role would be minimal. And more broadly, Rassbach sought to assure the justices that courts would not have to make such decisions often.

Justice Stephen Breyer chimed in. Federal laws, Breyer noted, allow employers to hire someone who belongs to a particular religion if there is a connection between the job and the religion. And the ministerial exception would apply to bar a lawsuit by someone in a leadership position in a church. Why, Breyer asked Rassbach, do you need more than that?

Justice Sonia Sotomayor echoed Breyer’s and Ginsburg’s questions. You are asking, she told Rassbach, for an exception that is broader than the ministerial exception and broader than what is needed to protect the church. Biel (who died last year, but whose husband has continued the lawsuit) and Morrissey-Berru aren’t claiming that they were fired because the school thought they were teaching religion wrong; they are claiming that they were the victims of discrimination based on their disability and age. You are asking, Sotomayor continued, for an exemption from a variety of laws, such as the Family and Medical Leave Act and “all sorts of laws, including breach of contract.”

Justice Elena Kagan fired a series of hypotheticals at Rassbach, ranging from a math teacher who teaches “something about Judaism for ten minutes a week” to a nurse at a Catholic hospital who prays with sick patients and an employee at a soup kitchen who leads grace before meals. What’s the connection, Kagan asked Rassbach, between the employees who would or would not fall under the exception, in your view?

Kagan’s questions embodied the apparent concerns of several justices on the court: How exactly should the court draw the line to determine which employees are “ministers” for purposes of the exception? For Rassbach, this meant answering questions like the one he received from Justice Clarence Thomas, who pressed him to explain how a court would determine whether an employee performs an important religious function.

Rassbach pointed to some of the roles described in the court’s 2012 ruling in Hosanna-Tabor Lutheran Church v. EEOC, such as preaching, teaching and leading worship. And if other roles are at issue, Rassbach suggested, courts should give some weight to the church’s understanding of the employee’s role.

Justice Neil Gorsuch was skeptical. Even when courts defer to the religious institution, Gorsuch told Rassbach, you are still asking us to make some decision about what is important and what is not. Gorsuch envisioned a hypothetical school in which everyone pledged to try to help kids be part of the faith. What, Gorsuch asked, do we do about that?

Justice Brett Kavanaugh also worried aloud about how to distinguish between different kinds of teachers. Would an English teacher “who sprinkles in references to Matthew 25 and ‘feed the hungry’” or an art teacher who discusses art in the Vatican be covered by the ministerial exception? Rassbach responded that they would not be, but Kavanaugh seemed unconvinced. Are we going to have litigation, Kavanaugh queried, over what particular students take away from particular coaches or students if you win this case?

Arguing for the federal government, which filed a “friend of the court” brief supporting the schools, Morgan Ratner, an assistant to the U.S. solicitor general, faced similar questions, including one from Chief Justice John Roberts: Is a court supposed to look at what is a significant religious function and what is an insignificant one?

Ratner sought to reassure the court that looking at the functions described in Hosanna-Tabor – such as whether the employee engaged in preaching, teaching and leading worship – would address most ordinary cases in this area. This standard been around since the 1980s, Ratner reminded the justices; it is not something that the federal government is inventing, nor is it a rule that courts will struggle with.

But Ginsburg disagreed, describing the breadth of exemption that Ratner was proposing as “staggering.” What about a lay teacher, with job duties similar to those of Biel and Morrissey-Berru, who is fired after she reports a student’s complaint that she has been sexually harassed by a priest. She has no remedy?

In his questions for Ratner, Gorsuch seemed to suggest that the government’s position doesn’t go far enough. In other contexts, Gorsuch observed, the Supreme Court has emphasized repeatedly that courts shouldn’t examine how central someone’s religious beliefs are; it is enough that the beliefs are sincerely held. But here, he told Ratner, the government is asking the court to decide who is playing an “important” religious role and who has a minimal one. Doesn’t that create, Gorsuch asked, the same kind of entanglement that we have tried to avoid elsewhere? Why can’t we just say that a church’s sincerely held religious belief about who is a minister should decide the case?

Arguing for the teachers, lawyer Jeffrey Fisher told the justices that they were “absolutely right” to be concerned that a focus on whether an employee serves an “important religious function” would result in courts’ being enmeshed in the affairs of religious institutions. Instead, Fisher argued, the Supreme Court should rule that courts should look at “objective factors,” such as an employee’s title. Such a rule, Fisher contended, would be consistent with how the lower courts had been applying the ministerial exception in the decades leading up to Hosanna-Tabor, when they consistently held that lay teachers were not covered by the exception even if they taught religion. Fisher cautioned the justices that if the court were to rule that all “important religious functions” trigger the ministerial exception, it would see a flood of cases, involving employees at all kinds of workplaces operated by religious institutions. We are talking, Fisher emphasized, about hundreds of thousands of nurses’ being stripped of employment protections, for example. Moreover, Fisher added, the schools’ rule would call into question things like credentialing requirements and criminal background checks for teachers at religious schools.

Roberts characterized the teachers’ position as more “formalistic” – that is, more focused on titles than on whether the teachers are performing religious functions. My concern, Roberts told Fisher, is that different faiths may put different stock in titles, and that such standard would be “pretty manipulable”; religious institutions could simply shield themselves from liability by giving everyone a title.

Fisher explained that titles are an important first factor to consider, but that courts should generally follow the multi-factor test that the justices outlined in Hosanna-Tabor. Courts should look not only at the title but also at whether the employee had specific training or needed to belong to the same religion, Fisher noted.

Thomas highlighted what he saw as a contradiction in the teachers’ argument. Biel and Morrissey-Berru, he recounted, sometimes led their students in prayer or took them to church services, which they could not do at the local public school. Fisher responded that although such actions would indeed cross the line for public school teachers, the distinction doesn’t shed any light on what makes someone a minister. But Thomas countered that he found it a “bit odd” that something that would violate the Constitution when done in a public school would not be enough to qualify for constitutional protection in a religious school.

Although his colleagues had earlier expressed concerns about how to draw the line between different kinds of religious functions, including different roles for teachers, Justice Samuel Alito seemed more sympathetic to the schools’ argument. He asked Fisher whether the ministerial exception would apply to a middle- or high-school teacher who taught only religion all day. Fisher did not concede that a teacher in that position was a “minister,” but he seemed to suggest that it would be a closer case than those of his clients, elementary school teachers who taught all subjects and just happened “to pick up the workbook for 40 minutes a day and teach religion.”

Alito did not appear to agree that the two kinds of teachers should be treated differently. “For a school that is set up by a religious body,” Alito emphasized, “the teaching of religion is central.” Otherwise, Alito suggested, the students could simply go to public school.

In his rebuttal, Rassbach warned the justices that upholding the 9th Circuit’s decision would “replace Hosanna-Tabor’s well-designed framework for deciding delicate church/state questions with a constitutional thicket.” Virtually all of the justices appeared to share concerns about avoiding a constitutional thicket, but it was far less clear that there was any consensus on the best way to do so.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.