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Will the Supreme Court Protect ‘Ministers’ From Their Church?

A case will determine the extent to which religious groups are shielded from employee lawsuits.

Credit...Christopher Lee for The New York Times

Contributing Opinion Writer

The Supreme Court, now even more invisible than usual, may seem beside the point these days, although we saw from the batch of opinions handed down on Monday that the justices are still at work. The 11 cases that were fully briefed and ready for argument this week and next will be heard eventually. I want to focus on one of those cases, a largely overlooked religion case that will have a great deal to tell us about the court’s receptivity to the increasingly audacious claims of religious supremacy now hurtling its way.

Ordinarily, at this point in a column about a Supreme Court case, I would write: “The question in the case is … ” But in fact, the two sides view this case as presenting fundamentally different questions. I can’t recall such a crucial divergence between the way petitioners and respondents — the terms the Supreme Court uses for the opposing parties — frame the issue to be decided. The justices’ choice of which question to address will very likely determine the answer they give.

The petitioners in Our Lady of Guadalupe School v. Morrissey-Berru are two Catholic schools in Los Angeles County, each of which dismissed a lay fifth-grade teacher, giving reasons that may or may not have been the real reasons. Each of the teachers — the respondents — brought suit under federal law for employment discrimination, one for disability discrimination (St. James School refused to renew Kristen Biel’s contract after she told them she had breast cancer and needed time for treatment and recovery) and one for age discrimination.

Here is the question the schools present to the court:

“Whether the Religion Clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, where the employee carried out important religious functions.”

And here is the question the teachers are asking the court to decide:

“Whether the First Amendment’s Religion Clauses prohibit lay teachers at religious elementary schools from bringing employment discrimination claims.”

Note that the first question incorporates the assumption that the teachers, Agnes Morrissey-Berru and Ms. Biel, each of whom taught an ordinary fifth-grade curriculum along with a religion module they taught by following a workbook, were performing “important religious functions.” The second question refers only to “lay teachers.” It contains no suggestion that either teacher was serving in a religious capacity; in fact, neither school required members of its faculty to be practicing Catholics, and Ms. Morrissey-Berru was not. She had taught full time at Our Lady of Guadalupe School for 16 years and was in her 60s when the school’s principal asked her if she wanted to retire. When she said no, she was demoted to a part-time position and her contract was not renewed for the following year.

These facts along with the difference between the two questions are important because this dispute is playing out against the background of a 2012 decision in which the Supreme Court first recognized a “ministerial exception” that shields religious employers from discrimination claims by their employees. The unanimous opinion by Chief Justice John Roberts in that case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, relied on an amalgam of the First Amendment’s two Religious Clauses: the Establishment Clause, which the Supreme Court has long interpreted as barring government “entanglement” with the affairs of churches, and the Free Exercise Clause, which prohibits government obstruction of religious practice.

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Two church schools are arguing that lay teachers they dismissed can’t sue over discrimination because they carried out an “important religious function.” Credit...Gerald Herbert/Associated Press

While unanimity in religion cases is rare at the Supreme Court these days, it was understandable in the Hosanna-Tabor case, at least at first glance. After all, no court would entertain a sex-discrimination suit against the Catholic Church from women who wanted to be priests. And a synagogue looking for a new rabbi would hardly be expected to open the job search to non-Jews, despite the prohibition against religious discrimination in employment in Title VII of the Civil Rights Act of 1964.

These are the easy cases. What about the harder ones? Chief Justice Roberts achieved unanimity in Hosanna-Tabor by treating the facts of that case in a way that put it in the easy category while pushing the hard questions down the road. The plaintiff, Cheryl Perich, taught kindergarten, but she was more than simply a lay teacher. She had been designated a “called teacher” following completion of an intensive course of theological study and a vote of the congregation. She led students in prayer and sometimes led chapel services. Her church referred to her as a “commissioned minister” and she held herself out as a minister, even receiving the federal income tax break available to clergy members.

Ms. Perich went on disability leave following a diagnosis of narcolepsy. When she tried to return after several months, she was told that her position had been filled and that she should seek a “peaceful release” from her call. After she refused and indicated that she would invoke the Americans With Disabilities Act, the school fired her for “insubordination and disruptive behavior.” When the Equal Employment Opportunity Commission brought suit on her behalf, the school argued that it had dismissed her for religious reasons, namely that her threat to go to court violated the Lutheran belief that Christians should resolve their disputes internally. (The E.E.O.C. has switched sides and supports the schools against the teachers in the case now before court.)

In his opinion, Chief Justice Roberts said the court should be reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister.” He continued: “It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.” The circumstances the chief justice cited were “the formal title given Perich by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church.”

Now, eight years after the court first announced the ministerial exception, the justices are faced with deciding whether the two teachers in the new case are so like Ms. Perich as to shield their employers from the consequences of treatment that could ordinarily be unlawful, or whether they are sufficiently different as to have the right to go court like any other plaintiff claiming discrimination. (Ms. Biel died of breast cancer last year, and her case is being carried on by her husband, Darryl.)

Two separate three-judge panels ruled in favor of the teachers. Each applied the holistic approach of the chief justice’s opinion in Hosanna-Tabor and concluded that while the teachers performed some religious functions, they lacked not only the title but the training Ms. Perich had received and the status she enjoyed. “No federal court of appeals has applied the ministerial exception in a case that bears so little resemblance to Hosanna-Tabor,” the panel majority said in Ms. Biel’s case, adding, “A contrary rule, under which any school employee who teaches religion would fall within the ministerial exception, would not be faithful to Hosanna-Tabor or its underlying constitutional and policy considerations.”

The schools, represented by the Becket Fund for Religious Liberty, offer a very different interpretation of Hosanna-Tabor. What really mattered in that case, their brief argues, was not title or training, but whether the employee performed an “important religious function.” Both teachers “carried out the important religious function of teaching the Catholic faith to the next generation,” each serving as “a messenger or teacher of the faith,” their brief asserts. Far from being faithful to Hosanna-Tabor, they argue, the Ninth Circuit imposed the kind of rigid formula that Chief Justice Roberts had dismissed as inappropriate.

It’s important to look behind the curtain here. What is an “important religious function,” and who’s to say? Solicitor General Noel Francisco’s brief is explicit in calling for complete deference to the religious employer: “Facts that demonstrate a religious organization sincerely regards its employee as performing such important religious functions should be dispositive.” And who judges sincerity? Recent Supreme Court precedents make clear that judges are not to question the sincerity of a religious claim.

These questions are significant, given evidence that some religious-right organizations are trying to game the system, advising that even telephone receptionists be given some religious duties so as to insulate the employer from a lawsuit. Alliance Defending Freedom, an organization that has gained prominence by finding plaintiffs to challenge laws that bar discrimination on the basis of sexual orientation, offers the following advice in a publication titled “Protecting Your Ministry”:

When feasible, a religious organization should assign its employees duties that involve ministerial, teaching, or other spiritual qualifications — duties that directly further the religious mission. For example, if a church receptionist answers the phone, the job description might detail how the receptionist is required to answer basic questions about the church’s faith, provide religious resources or pray with callers. Consider requiring all employees to participate in devotional or prayer time, or to even lead these on occasion.

Employees with some duties usually performed by (or associated with) clergy are more likely to be viewed as “minister-like” by the courts. Consequently, courts are more likely to apply the ministerial exception to employment law claims based on alleged discrimination.

Clearly, “important religious function” as the sole test for eligibility for the ministerial exception — without any suggestion of the role the religious function plays in the employee’s overall work day — threatens to wall off many thousands of American workers from the protections against employment discrimination that federal and state laws provide.

A brief filed by 70 civil rights organizations supports the Hosanna-Tabor approach but warns that without the limiting principles of the chief justice’s opinion, even “a line thrown into a job description” would suffice to “insulate the employer from civil rights claims.” The brief notes that “women overwhelmingly pay the price of the ministerial exception” given that teachers in religious schools are overwhelmingly female. If covered by the ministerial exception, they would be barred from bringing suits for sexual harassment.

Because the ministerial exception is so new, its contours are only now taking shape. The U.S. Department of Labor recently issued an opinion letter asserting that employees covered by the exception could not sue for violations of the overtime provisions of the Fair Labor Standards Act. Minimum wage provisions of that statute, as well as the Equal Pay Act and the Family and Medical Leave Act, have also been put in play in cases in the lower courts.

What exactly did the justices who were on the court in 2012 think they were doing when they took that first step down the road toward giving religious organizations a carve-out from the laws that apply to the rest of us? Were they resolving a dispute on its particular facts? Or were they launching a long-range project, destination unknown? If it’s the latter, unanimity will be short-lived, but the impact will be with us for a long time.

I end this column with a brief reflection. The necessity of closing the Supreme Court and postponing arguments was obvious. It was also deeply unsettling to anyone whose professional life is entwined with the life of the Supreme Court. For us, the Supreme Court’s calendar is always running somewhere in the back of our minds, in sync with more commonly observed calendars and even with the highlights of family life (my daughter was born on the first Monday of October, a source of merriment to the justices, most of whom signed a greeting welcoming her to the world). We knew, or thought we knew, that as sure as the cherry trees would bloom in the last two weeks of March, the justices would be on the bench.

The first national catastrophe of which I have a vivid memory was John F. Kennedy’s assassination. A conversation from that time, reported shortly afterward, has stuck with me all these years. The night after the assassination, the murdered president’s friends gathered in the Washington apartment of the political columnist Mary McGrory. “We’ll never laugh again,” McGrory said, to which the future senator Daniel Patrick Moynihan replied: “Heavens, Mary, we’ll laugh again. It’s just that we’ll never be young again.”

We will travel again, those of us who make it to the other side of this crisis. We will go to the movies again. We will meet a friend for a drink after work again. But we’ll never again be able to take any of it for granted.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.

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