Discrimination and Degradation Both Are Parts of SCOTUS Decision on “Ministers”

Today’s post is from Lisa Fullam, D.V.M., Th.D. Lisa teaches moral theology at the Jesuit School of Theology of Santa Clara University, California.  For Lisa’s full bio, including her publications, click here.

The Supreme Court decision in the two recent religious employment discrimination cases (Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel) sides with those who would fire their employees for reasons of illness, disability, age, sexual orientation or identity, or, conceivably, any of the other protections provided to workers by civil law. It was just last month that the Court decided that LGBTQ Americans are due civil rights protection under Title VII, and almost immediately the reach of that case was limited by the “ministerial exception” in these cases. This broad decision, allowing religious institutions enormous latitude in deciding who counts as a minister, lets institutions to duck civil rights laws in the name of religious freedom. [Editor’s note: Click on the appropriate words for New Ways Ministry’s statements on the religious exemption decision and the Title VII decision.]

The United States Conference of Catholic Bishops’ amicus brief supporting the schools is grounded in religious liberty, but is developed into a ringing endorsement of the role of laypeople as minsters in the Church:

“The Church [sic] has emphasized that the laity must not be viewed as mere “collaborators” with the clergy, but ‘as people who are really “co-responsible” for the Church’s being and acting.’ (Message of His Holiness Pope Benedict XVI on the Occasion of the Sixth Ordinary Assembly of the International Forum of Catholic Action (Aug. 10, 2012).) The Church exhorts the laity to ‘share the pastoral decisions of the dioceses and parishes, …creating …communion with priests for a lively ministerial and missionary community.’ (Ibid.)”

You’d think this affirmation would be good news. Lay people in ministry have long been calling for greater recognition of their work in and for the Church as ministry. As of 2015, the number of lay ecclesial ministers in parish ministry (which is steadily growing) exceeded the number of priests (which is shrinking), for the first time. In Catholic schools, the role of laity as teachers is striking: as of 2016, there are 146,367 professional staff teaching in Catholic schools; only 2.6% are religious or clergy (only 0.6% are clergy). Welcoming lay people into true co-responsibility in the works of the Church should work to dissolve the stark boundary between the ordained and non-ordained that fosters toxic clericalism.

But that’s not why these cases were litigated.  One of the plaintiffs in this decision was fired after her diagnosis of breast cancer was revealed; the other worker was fired after many years of employment in the school, and she claimed age discrimination as the basis for her termination. The ministerial exception allows Catholic institutions to treat its employees in ways that civil society has deemed immoral and illegal.

Let me be clear—it is reasonable for churches to establish criteria for those who minister in their names. Neither of the two teachers named had any of the advanced theological training regarded as essential by seminaries since the Counter-Reformation. Since both were women, they would have been shooed away from most seminaries if they claimed a call to priesthood. They were not ministers in the sense that they were authorized religious authorities in the Catholic Church.

Indeed, many teachers in Catholic schools are non-Catholic or non-Christian. In these cases, neither of the teachers was commissioned in any way beyond being hired to teach. The vast majority of their work was teaching secular subjects, not religion. (Neither of the schools in this case requires even its religion teachers to be Catholic, for that matter.) As Justice Sonia Sotomayor put it in her dissent:

“Even if the teachers were not Catholic, and even if they were forbidden to participate in the church’s sacramental worship, they would nonetheless be ‘ministers’ of the Catholic faith simply because of their supervisory role over students in a religious school. That stretches the law and logic past their breaking points.”

Further, to call people “ministers” who have no meaningful theological training or any explicit authorization–or even a necessary connection to the Church at all–degrades the notion of the term at a time when lay ministry is in sore need of greater magisterial appreciation, and is increasingly the face of ministry in the Church.

It is also true that teachers of all subjects are important bearers of a Catholic institution’s charism. The question of what counts as Catholic identity is a fiercely contended one in Catholic school circles: some hew closely to enforcing ecclesial rules and regulations, while others emphasize social justice and an inclusive vision of care for all students. But these cases weren’t about Catholic identity in any usual sense since illness and age, the alleged forms of discrimination, have nothing to do with issues of faith and morals.

These cases were brought in part to set in judicial stone aspects of religious employers’ powers over their employees. What is sad is the side the Catholic leadership backed in these cases. The grand tradition of a preferential option for the poor, of turning a special eye to the needs of the less powerful which is manifested over and over in Catholic Social Teaching, was negated in these cases.  It’s not the first time, of course—the Catholic hierarchy’s collusions with the powerful in large matters and small across history are too numerous to count—and cozying up to power usually winds up costing the Catholic Church credibility as a force for social justice in the world.

So in siding with the schools, the Court sided with the powerful against the sick, the elderly, or any of the other categories of people a Catholic school might call “ministers” in order to be able to discard them. And as we know too well at New Ways Ministry, one of the battles in Catholic schools involves teachers’ contracts that specifically call teachers “ministers” in order to be able to fire them if they are found to be LGBTQ (especially if they marry) or LGBTQ allies.

So, while LGBTQ people have been regarded as due the basic Title VII protection from capricious employment discrimination, this more recent decision emphasizes that LGBTQ teachers are not protected in Catholic institutions that cynically call them “ministers.”

—Lisa Fullam, Jesuit School of Theology of Santa Clara University, California, July 14, 2020