Article Summary

In telephonic arguments before the U.S. Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru and its consolidated case, lawyers for each side debated about who must sacrifice their workplace rights under the so-called ministerial exception, which applies to some employees of religious organizations. At least some of the justices, however, seemed just as interested in limiting what rights must be surrendered — and if the stars align, that could lead to an improvement on this valid but thorny constitutional doctrine.

This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on May 19, 2020.

Originally published in:

Toward a Good-Faith Version of the Ministerial Exception

By R. Scott Oswald

In Hosanna-Tabor v. EEOC, the U.S. Supreme Court blessed the idea of a “ministerial exception” to employment discrimination laws, holding unanimously in 2012 that — as a constitutional matter — courts may not interfere in the hiring or firing of “ministers” by religious organizations, even where a plaintiff has claimed bias that’s unrelated to religion.

OK, but how far can this carve-out reach, considering that it limits the application of laws that protect workers from racism and other fundamental wrongs?

Or, put differently: How many employees must sacrifice their civil rights as “ministers”? A lot, or just the few who accept leadership roles? How much of its workforce may a religious employer fire, for reasons fair or foul, without legal review?

In his opinion in Hosanna-Tabor, Chief Justice John Roberts rejected a “rigid formula” and instead analyzed a number of factors, including an employee’s title and the “important religious functions” she performs. Under this analysis, Hosanna-Tabor was a fairly easy call: Although the teacher who claimed disability discrimination performed many non-religious tasks, she was commissioned as a minister — using that very word — and designated as a “called” teacher by the Lutheran congregation for which she worked.

What of the myriad other employees at schools, hospitals, and service groups run by religious organizations, however, who may total a million or more? Can lay teachers or nurses be called “ministers,” too, stripping them of the right to challenge workplace bias? How about orderlies or cafeteria workers? Janitors?

Religion on the Line

These were some of the questions raised during telephonic arguments at the court on May 11 in Our Lady of Guadalupe School v. Morrissey-Berru, the inevitable sequel to Hosanna-Tabor — and it quickly became evident that Chief Justice Roberts won’t muster unanimity this time around.

On one side, Justice Ruth Bader Ginsburg expressed horror at the “staggering” breadth of the legal exemption envisioned by Eric C. Rassbach of the Becket Fund for Religious Liberty, who argued for religious employers Our Lady of Guadalupe and, in a consolidated case, St. James School, both accused of illegal discrimination.

Meanwhile Justice Clarence Thomas floated an exemption standard that was arguably even broader than Mr. Rassbach had suggested — and that could place religious institutions largely outside the realm of employment law.

The remaining justices strove in vain to elicit a standard that wouldn’t require courts to “second-guess who [religious groups] deem a minister,” as Justice Neil Gorsuch put it. Judicial entanglement with religious institutions is bad, everyone agreed — but it’s also inevitable, at least to some degree, if the ministerial exemption is to be anything more than a free pass for bad actors.

Ultimately the justices showed signs of falling back to ground previously staked out. In Hosanna-Tabor, Justice Elena Kagan joined a concurrence by Justice Samuel Alito that received several positive comments in last week’s arguments — and that had the vibe of a proposed majority opinion that was dropped in favor of Chief Justice Roberts’ narrower, more unifying decision.

With Justice Thomas likely to go his own way in 2020, joined perhaps by Justice Gorsuch, there may be hope for an Alito-led coalition that confines the ministerial exception to cases where the employee has certain religious duties and the employer “believes that the ability of such an employee to perform these key functions has been compromised,” in the words of the 2012 concurrence.

Such a formulation would still give a wide berth to religious employers on constitutional grounds — but hardly a free hand. Courts would depend on institutions to assert a religious prerogative in good faith, but they also might allow some discrimination cases to proceed where religion is not implicated. The degree of latitude would depend, presumably, on how clearly an employee can be identified as a “minister” and on the alleged grounds for dismissal.

A Term of Art, Not a Title

The problem of slippery terminology was ever-present during last week’s arguments, on both sides of the debate. The word “minister” is especially unfortunate: Despite its actual use in some religious hierarchies, it must be distinguished as “a legal term of art,” said Morgan L. Ratner, the assistant to the U.S. Solicitor General, while arguing in support of the religious employers.

To the credit of Ms. Ratner and Mr. Rassbach, neither suggested that courts might defer to a religious institution’s definition of this legal term — even though, at times, both Justice Gorsuch and Justice Thomas seemed to entertain the idea, if only to spring judges from the trap of church/state entanglement.

“We don’t think that there’s any way to entirely extricate yourself from this problem,” said Ms. Ratner, correctly, since in Hosanna-Tabor the justices endorsed a legal doctrine that must perforce be interpreted by courts.

Arguing for the employees who claim discrimination, Jeffrey L. Fisher of Stanford Law School said the word “minister” and its matching exception should be reserved for employees in “a position of spiritual leadership” — which excludes, for instance, a workaday teacher in a Catholic grade school who teaches religion as one of many subjects, he said.

Mr. Rassbach and Ms. Ratner predictably said that such a teacher is a minister, since that’s exactly the issue in Morrissey-Berru, but offered subtly different formulations along the way. While Mr. Rassbach wanted to sweep up any employee whose religious role exceeds a bare minimum, Ms. Ratner said that “the religious functions of the type discussed in Hosanna-Tabor have to be a meaningful part of somebody’s job duties.”

Notably, all three advocates started from the assumption that a fired “minister” — however defined — would be categorically excluded from the protection of anti-discrimination laws, since that’s the essence of Hosanna-Tabor. Several of the justices, however, were not so sure.

Justice Ginsburg raised questions about retaliatory firings, which are prohibited by anti-discrimination laws but often held to be distinct, as well as firings “for a reason that has absolutely nothing to do with religion, like needing to take care of chemotherapy” — much like in St. James School v. Biel, the case consolidated with Morrisey-Berru — a prospect she said she found “very disturbing.”

Ms. Ratner tried to dismiss such concerns as “what is covered by the ministerial exception, as opposed to who falls within it,” claiming that the court’s sole task was to decide the latter. But other justices also talked about the “what,” which seemed to gain in prominence as the leadership role of the “who” diminished.

“You’re asking for something broader than giving the schools the power to hire or fire certain kinds of people because of how they teach the religion — or don’t teach it — and you haven’t explained to me why it’s necessary,” Justice Sonia Sotomayor told Mr. Rassbach.

Maybe the ‘What’ Does Matter?

Justice Alito also seemed tightly focused tightly on the constitutional protection of religious action, as opposed to religious actors — which may point to a possible compromise between the religious libertarian and the court’s liberal wing.

“The function of teaching a religion to new generations is central” to that religion, said Justice Alito. “And for a school that is set up by a religious body, the teaching of religion is central.”

In the instant cases, Justice Alito seemed to indicate, that meant the ministerial exception might well apply, depending on the facts — although he said he “would be more comfortable if we jettisoned the whole term ‘ministerial exception'” in favor of something more evocative of the true issue, which he named as “religious autonomy.”

This wording echoed his concurrence in Hosanna-Tabor, which placed religious autonomy at its very heart. “Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance,” he wrote.

That might bode ill for plaintiffs everywhere, if he had stopped there. But Justice Alito went on to explain that the crucial fact in Hosanna-Tabor was that the employer claimed to have fired Cheryl Perich because her “disregard for [its] doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith.” (Emphasis added.)

At the time, Ms. Perich had responded that the doctrinal argument was just a pretext for illegal discrimination, a standard legal parry — but, according to Justice Alito, courts are constitutionally forbidden to second-guess such a religious assessment.

“What matters … is that [the employer] believes that the religious function that respondent performed made it essential that she abide by [its] doctrine,” he wrote, indicating that job discrimination that doesn’t implicate doctrinal matters is likely not constitutionally protected, at least at the level of Ms. Perich, a teacher.

Although they didn’t join Justice Alito’s concurrence, this reasoning would seem to address the core discomforts expressed last week by Justices Ginsburg and Sotomayor — and maybe those of Justice Stephen Breyer, too. Justice Kagan already joined the concurrence back in 2012 — which makes five votes, a majority.

In truth, Justice Alito’s 2012 concurrence is somewhat at odds with the unanimous decision in Hosanna-Tabor. But the differences are likely surmountable, and Chief Justice Roberts could help to thread the needle by joining a new majority. A reasonable compromise might limit the categorical exception of Hosanna-Tabor to cases involving spiritual leaders, while applying Justice Alito’s narrower, doctrine-based exception to certain other employees within a religious organization.

During last week’s arguments, Justice Breyer suggested that religious organizations already can exercise the same autonomy by invoking the so-called “bona fide occupational qualification” or BFOQ — the well-accepted idea that certain jobs may have requirements to which anti-discrimination laws can’t reasonably be applied, like an upper age limit for airline pilots. BFOQs can be litigated, however, while Justice Alito believes the Constitution requires courts to step aside entirely when faced with a doctrine-based decision.

Anyhow, the only alternative for any liberal justice is to watch as Hosanna-Tabor is extended to strip at least some lay teachers, and possibly many other lay employees of religious institutions, of substantially all their employment rights. Better to join with Justice Alito to cabin the ministerial exception while it’s still possible.

Might some religious groups “cheat” by ginning up unreviewable doctrinal differences to justify firings that would otherwise be illegal? Of course — just as such groups are currently advised, as Mr. Fisher claimed in arguments, to assign their employees “daily prayer activities and the like” purely in order to qualify as “ministers.”

Manipulation would be harder with a narrow exception, however — and besides, the law, like many religions, starts with a leap of faith.


R. Scott Oswald is managing principal of The Employment Law Group, P.C.

(Note: This version has been edited and expanded slightly from the version published by Law360.)