Christian schools' legal team optimistic after Supreme Court weighs ministerial exception

By Samuel Smith, Deputy Managing Editor Thursday, May 14, 2020

The U.S. Supreme Court heard arguments Monday in a pair of cases that could shape how far religious employers’ “ministerial exception” goes in protecting them from discrimination lawsuits brought by certain employees. 

Observers came away from Monday’s hearing believing the court may take the opportunity to fine-tune legal language on religious exemptions that faith-based employers possess to make hiring decisions that could break federal and local discrimination laws.

On Monday, the nation’s high court heard the cases of Our Lady of Guadalupe School v. Morrissey-BerruandSt. James School v. Biel. Both cases center around California elementary school religion teachers whose contracts were not renewed and who have sued on the basis that they were discriminated against in manners that violate the law. 

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In the case of Our Lady of Guadalupe School in Hermosa Beach, Agnes Deirdre Morrissey-Berru claimed that her contract as a religion teacher was not renewed as a result of age discrimination. She sued under the Age Discrimination in Employment Act. 

However, the Our Lady of Guadalupe School contends that the teacher was let go due to poor performance after a new principal was brought to the school and a new rating system was implemented that featured the teachers becoming catechists. 

In the other case, Kristen Biel taught a fifth-grade religion class at St. James School in Torrance starting in 2013. But when her contract was not renewed in the next year, she sued and claimed that the school was discriminating against her for having cancer, a violation of the Americans With Disabilities Act. 

Lawyers for the school contend, however, that Biel was let go because of poor performance and that the school made it known to Biel before she disclosed her cancer diagnosis that she may not get a new contract. 

District courts dismissed both cases on grounds that a ministerial exception is provided to religious groups when it comes to hiring decisions related to positions responsible for the sharing and teaching of the faith. The legal precedent was broadened by the Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. 

However, the U.S. 9th Circuit Court of Appeals ruled in favor of the teachers last year. The 9th Circuit broke away from trends set in previous lower and appellate court rulings by focusing on the fact that the teachers' formal titles seemed secular. 

While reports have indicated that the justices appeared divided along ideological lines during Monday’s telephone hearing, attorneys at Becket who represent the schools came away from the hearing with optimism that the schools will come out on top. 

“Our view was the court really seemed quite broadly in agreement that the schools should win their case and that the 9th Circuit was wrong,” Becket Senior Counsel Daniel Blomberg, a member of the legal team representing the schools, told The Christian Post. 

“I think the thing that the justices were probing was less about this particular case but more about how to draw the line doctrinally in future cases. I think that’s one of the things that came through really clear was that the line being drawn by opposing counsel wasn’t the right one.”

While the schools maintain that religion teachers fall under the umbrella of positions protected by ministerial exception, the attorney for the teachers claimed that it is necessary for positions covered under the exception to have a title that the government would understand as being religious. Additionally, the teachers’ legal team claims that they never had to undergo any type of formal religious training. 

“We just don’t think that can be true under the First Amendment,” Blomberg said of a title requirement. “These teachers were teaching the faith so the children would adopt the faith. That is a much more important and much more central aspect of religious autonomy than whether we call these teachers ‘ministerial teachers’ instead of just teachers.”

Blomberg pointed out the Hebrew term “rabbi”’ — the title for a Jewish leader — translates to “teacher” in English. 

It is not the school’s position that all teaching positions are covered under the ministerial exception but only “those positions that are important to the communication of the faith," he said.

“If you have a math teacher who only taught math, they would not be within the ministerial exception.” 

Blomberg’s optimism coming out of the hearing stems from an exchange between the teachers’ lawyer and Justices Samuel Alito and Elena Kagan, the justices who wrote a concurrence in the Hosanna-Tabor case that many lower courts look to when trying to rule on similar cases. 

“In [the opposition’s] view, if you had a religion teacher who was teaching religion every day, that wouldn’t be enough because you would have to show some title or some training or something like that in order to establish the ministerial exception,” Blomberg explained. “That guts the purpose of the ministerial exception. I think Justice Kagan called it surprising that he took that position. He didn’t back down from it. He was very clear.”

Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh asked questions related to why the ministerial exception protection shouldn’t be made even broader, Blomberg added.

“I think that is a good sign,” he said. “The kind of questions they were asking were less about these teachers … and they were assuming almost that these teachers were within that same decisional matrix. The question is where does the line go after that.”

One thing all sides — the schools, attorneys for the teachers and justices — could agree on was the dislike for the wording of the term “ministerial exception,” Blomberg explained. 

“Since 1985 in a case called Rayburn, this doctrine of the First Amendment has become known as the ministerial exception. The problem with that is that most non-Protestant faith groups don’t really call their religious leaders and teachers ministers. That is not a term they use.

“This has led to some discrimination and some confusion against minorities and faith groups that don’t use that kind of terminology. The other problem early in the doctrine was courts were confused if the exception was just kind of a statutory thing where you read it into a statute, thinking that it would never go this far because then it would violate the First Amendment. Or was it actually grounded in the First Amendment itself?”

He further contended that thinking of the exemption as an “exception” loses sight of the fact that it is a free speech guarantee under the First Amendment of the Constitution.

According to Blomberg, Alito voiced his displeasure with the term during the hearing, calling it discriminatory. Both the opposing attorney and Becket have also voiced support for changing the term “ministerial exception.”

According to Becket, the term is no longer useful. 

“We get why it was started. But at this point, it is really more confusing than helpful,” Blomberg said. “You might see the law moving more in the direction of a term like ‘ecclesiastical immunity,’ which is the idea that there is a space for religious groups to make their own decisions about the people who hold really important and religiously sensitive positions and the government is not going to get involved.”

“It is not an exception to the statute and it is not just for ‘ministers.’ It is immunity from government intrusion because it is respecting this idea of core religious autonomy.”