The U.S. Supreme Court heard oral arguments this week in two cases concerning the various factors that will determine how workers may be classified as “ministers” when employed by religious institutions. The decision in these joined cases could have an impact on the scores of employment disputes involving LGBTQ issues that have occurred in the last decade.
According to Vox, Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel each involve a Catholic school teacher’s employment termination and whether the teacher legally falls within the “ministerial exemption” under the First Amendment. This exemption excludes religious institutions from non-discrimination employment laws for personnel who are defined as ministers. Should the U.S. Supreme Court conclude that the teachers qualify as ministers, their religious employers would be shielded from potential complaints about violating anti-discrimination provisions.
Currently, the “ministerial exemption” established by a previous Supreme Court ruling (Hosanna-Tabor) for religious employers to hire – and fire – their own ministers is vast. Vox claimed that religious employers can even take part in “invidious discrimination.” The publication offered the following example:
“A church may fire a minister, for example because that minister is black, or because they are gay, or because they’ve become pregnant, even though federal law prohibits race and pregnancy discrimination, and many states have laws barring anti-LGBTQ discrimination.”
Despite this broad exemption, it is legally unclear which employees qualify as “ministers”:
“Though there are some religious leaders – priests, rabbis, imams, and the like – who rather obviously qualify as ministers, what about someone with significant religious duties who spends most of their time engaged in secular work? What about someone who may spend a few hours a week providing religious instruction, but who has no formal legal training in theology and no formal status as an ordained minister?”
In both cases, each Catholic school teacher asserts that their employment was unjustly terminated:
“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.
“Agnes Morrissey-Berru, meanwhile, 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 the Hosanna-Tabor case, the Supreme Court already established several factors to determine if an employee falls within the legal definition of minister:
“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?’”
Applying these factors to the two cases before the Supreme Court has not provided a clear, definitive result. On side emphasize that both teachers earned degrees in secular fields and were categorized as “lay employees.” The other side points out that both teachers did engage in religious instruction for varying periods of time each week.
The Catholic schools in these cases have argued for a broad ministerial exception test. The exception applies, they claim, if the employee performs “important religious functions.” The two teachers have argued for a more narrow analysis focused on “whether an employer explicitly designated a particular employee as a minister, and whether the employee had formal religious training.”
Constitutional law scholar Dr. Leslie Griffin, who wrote a brief in the joined case*, said that religious employers backing the Catholic schools simply want to “make religious organizations free of the law.” She wrote in a piece for Verdict:
“Such broad religious freedom might sound like a good idea to many of you, until you think of all the harm it does to the individual employees, who are also usually religious. Individuals get abused by their fellow church members, and the church’s government then covers up the abuse. Individuals do not get the contraceptive insurance that the law of the land provides to everyone. As a result of these broadly-interpreted religious freedoms, individuals get fired from their jobs for disabilities, age, race, and more, but cannot get into court to collect their damages.
“Religious freedom is better protected by requiring religious organizations to protect the civil rights of everyone, especially their employees, and not to practice disability or age discrimination, which the churches do not endorse for religious reasons.”
Griffin’s analysis, available here, walks readers through some of the questions that the more liberal justices posed to those arguing for wider exceptions.
The ramifications for LGBTQ employees working in religious organizations are profound. In addition to if and how they define “minister,” how the court articulates religious education in relation to an “important religious function” may also play an enormous role for future cases. For example, consider the guidance counselor at a Catholic high school who has no classroom duties, but who also facilitates a one-hour monthly personal discussion group after school for LGBTQ students. The guidance counselor could be classified as a “minister” who is performing an “important religious function.”
Disturbingly, guidance documents have already been published by religious employers to help shield themselves from legal battles involving claims of employment discrimination targeting the LGBTQ community. The Vox article describes:
“[A] manual published by the Southern Baptist Convention and the Alliance Defending Freedom. That manual, titled Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits, suggested that even employees such as a receptionist could be reclassified as ‘ministers’ by a sufficiently creative employer.”
In the Catholic world, several dioceses have been developing new employee contracts which explicitly define any school employee as a minister.
*New Ways Ministry, among other Catholic groups, signed onto Dr. Griffin’s “friend of the court” (amicus curiae) brief. For more information about LGBTQ employment disputes in Catholic institutions, take a look at New Ways Ministry’s resource page on “Employment Non-Discrimination.”
—Brian William Kaufman, New Ways Ministry, May 14, 2020