No class on Monday
Tuesday & Wednesday:
--Hosanna-Tabor decision (link); Our Lady of Guadalupe (link);
-- Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular); Carson v. Makin (link)
Wednesday (if time permits):
City of Boerne case (casebook p. 1214-1223)
Be sure to read Carson v. Makin (link)
I decided not to assign my article on school choice. I have deleted it from the syllabus.
No class on Monday September 30. I will be out of town.
Facts of the case
Agnes Deirdre Morrissey-Berru was an teacher at Our Lady of Guadalupe School and brought a claim against the school under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment in favor of the school on the basis that Morrissey-Berru was a “minister.” In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court first recognized a ministerial exception, which exempts religious institutions from anti-discrimination laws in hiring employees deemed “ministers.”
The U.S. Court of Appeals for the Ninth Circuit reversed the lower court, finding that Morrissey-Berru was not a “minister”; she had taken one course on the history of the Catholic church but otherwise did not have any religious credential, training, or ministerial background. Given that she did not hold herself out to the public as a religious leader or minister, the court declined to classify her as a minister for the purposes of the ministerial exception.
Question
Do the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions but was not otherwise a “minister”?
Holding
The “ministerial exception,” which derives from the religion clauses of the First Amendment, prevents civil courts from adjudicating the former employee's discrimination claims in this case, and in the consolidated case, St. James School v. Biel, against the religious schools that employed them. Justice Samuel Alito authored the 7-2 majority opinion.
Courts generally try to stay out of matters involving employment decisions regarding those holding certain important positions with churches and other religious institutions, and the Court formally first recognized this principle, known as the “ministerial exception,” in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In that case, the Court considered four factors before reaching its conclusion that the employee was a “minister” for purposes of an exception to generally applicable anti-discrimination laws. However, the Court expressly declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” The factors relied upon in Hosanna-Tabor were specific to that case, and courts may consider different factors to decide whether another employee is a “minister” in another context. The key inquiry is what the employee does. Educating young people in their faith, which was the responsibility of the plaintiffs in these two cases, is at the very core of a private religious school’s mission, and as such, Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor.
Justice Clarence Thomas authored a concurring opinion, in which Justice Neil Gorsuch joined, arguing that courts should “defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’”
Justice Sonia Sotomayor authored a dissenting opinion, in which Justice Ruth Bader Ginsburg joined, arguing that the Court incorrectly classified the teachers as “ministers,” given that the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. Moreover, Justice Sotomayor argued, the majority’s approach “has no basis in law and strips thousands of schoolteachers of their legal protections.”
First, they affirmed that the “ministerial exception” — which limits the government’s role in selecting religious communities’ ministers, leaders, and teachers — is required by the First Amendment. Next, they rejected a crabbed approach to that exception, which would limit its reach only to ordained clergy or to ministers who spend a majority of their time on “religious” activities. And they noted that the ministerial exception constrains the reach of government with respect to religious communities’ decisions about ministers whether or not the employment decision in question was motivated or required by theological reasons.
This case matters for many reasons, but especially because it reminds us all that the separation of church and state — when it is properly understood — is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program, or as requiring that “religion” stay out of politics or public life. But this is not the point of church-state separation at all. The idea is to constrain government regulation, not religious expression and practice. Separation is an arrangement that protects religious authorities, institutions, and communities from unjustified interference by governments.
In Hosanna-Tabor, Chief Justice Roberts, writing for a unanimous Court, upheld the ministerial exception under both the Free Exercise Clause and the Establishment Clause.
Here is how Chief Justice Roberts explained the holding:"The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own." (p.9)
Here are a few questions to ponder:
1. The Court says the ministerial exception is recognized by both the
Free Exercise Clause and the Establishment Clause: "The Establishment
Clause prevents the Government from appointing ministers, and the Free
Exercise Clause prevents it from interfering with the freedom of
religious groups to select their own." (p.9)
First, a Free Exercise question--assuming that the ADA is a law of general applicability, why doesn't Smith
foreclose the Free Exercise claim in this case? See p. 15: "But a
church's selection of its ministers is unlike an individual's ingestion
of peyote: Smith involved government of only outward physical acts." How
is ingesting peyote (or drinking communion wine) as part of a communal
religious service an "outward physical act" and an employment decision
affecting an employee's livelihood is not? Is selection and control of
those who will minister to the faithful "strictly ecclesiastical?" Why
isn't the nature of the religious ritual (wine or peyote as a communal
ritual) strictly ecclesiastical?
Second, the EC issue. What principle of the EC is at stake here? Is it
an inhibiting entanglement for government to decide who can engage in
religious ministry and teaching of the faith? Is it the flip side of a
law that said Church authorities have the power to appoint and remove
government officials?
2. Who is a minister under the doctrine? Perich was a "called minister"
as opposed to a lay teacher. Suppose the school fired a "lay" teacher
with exactly the same duties as Perich. Would the ministerial exception
foreclose an employment discrimination action brought by the lay
teacher?
What about at a school like Lincoln Christian, which is a
non-denominational Christian school with the mission to "teach about
God's world from God's Word." There are no "called" ministers at LCS,
because the school does not ordain teachers. But all teachers at LCS are
required to affirm a doctrinal statement and all classes (including
so-called "secular" classes like math and history) are designed to be
taught from a biblical perspective. Are all LCS teachers "ministers?"
None of them? Some of them? Which ones?
3. Suppose a religious school takes the position that all of its
employees--including secretaries and janitors--are ministers in the
sense that their job, no matter how humble, is to advance the school's ministry
of transmitting God's truth to the next generation of believers. Who
is covered?
4. What is Justice Thomas's view of who qualifies as a minister? "The
question whether an employee is a minister is itself religious in
nature...." Thus, the courts should "defer to a religious organization's
good-faith understanding of who qualifies as a minister."
5. Now consider Alito and Kagan's view: "The ministerial exception
"should apply to any 'employee who leads a religious organization,
conducts worship services or important religious ceremonies or rituals,
or serves as a messenger or teacher of the faith."
What about a janitor at a Christian school? Is he a minister? Did not
Jesus wash the disciples' feet and tell them they should wash one
another's feet as an example of humility and love?
Justice Alito's concurring opinion (with Kagan)
provided some additional insight as to who is a minister:
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group's right to remove the employee from his or her position. p.2
6. For example, does the Catholic Church violate the equal employment rights of women when it adopts the practice of the all-male priesthood? Stanley Fish puts the question this way:
“Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices).”
But what of a Math teacher at a conservative Christian high school? Or the janitor? Who decides what functions are Church ministries? Is this a secular decision for the courts or the legislature? Or a theological decision which the state is forbidden to make under the EC?
7. Are law student leader's of the Christian Legal Society ministers
covered by the exception? If so, can government law school's insist that
they allow "all comers" to seek leadership positions as a requirement
for recognition in the law school student group forum?
1. "In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich’s. Although these teachers were not given the title of “minister” and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate."
2. "The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what we have termed “‘matters of church government.’ ” This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.
The “ministerial exception” was based on this insight. Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. The rule appears to have acquired the label “ministerial exception” because the individuals involved in pioneering cases were described as “ministers.” But it is instructive to consider why a church’s independence on matters “of faith and doctrine” requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception was recognized to preserve a church’s independent authority in such matters.
When the so-called ministerial exception finally reached this Court in Hosanna-Tabor, we unanimously recognized that the Religion Clauses foreclose certain employment discrimination claims brought against religious organizations. The constitutional foundation for our holding was the general principle of church autonomy to which we have already referred: independence in matters of faith and doctrine and in closely linked matters of internal government. The three prior decisions on which we primarily relied drew on this broad principle, and none was exclusively concerned with the selection or supervision of clergy."
3. "For related reasons, the academic requirements of a position may show that the church in question regards the position as having an important responsibility in elucidating or teaching the tenets of the faith. Presumably the purpose of such requirements is to make sure that the person holding the position understands the faith and can explain it accurately and effectively. But insisting in every case on rigid academic requirements could have a distorting effect. This is certainly true with respect to teachers. Teaching children in an elementary school does not demand the same formal religious education as teaching theology to divinity students. Elementary school teachers often teach secular subjects in which they have little if any special training. In addition, religious traditions may differ in the degree of formal religious training thought to be needed in order to teach. In short, these circumstances, while instructive in Hosanna-Tabor, are not inflexible requirements and may have far less significance in some cases.
What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school. As we put it, Perich had been entrusted with the responsibility of “transmitting the Lutheran faith to the next generation.” One of the concurrences made the same point, concluding that the exception should include “any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”
4. "Respondents argue that the Hosanna-Tabor exception is not workable unless it is given a rigid structure, but we declined to adopt a “rigid formula” in Hosanna-Tabor, and the lower courts have been applying the exception for many years without such a formula. Here, as in Hosanna-Tabor, it is sufficient to decide the cases before us. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow."
From Oyez:
Cheryl Perich filed a lawsuit against the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., for allegedly violating the Americans with Disabilities Act when they fired her after she became sick in 2004. After several months on disability, Perich was diagnosed and treated for narcolepsy and was able to return to work without restrictions. But she said the school at that point urged her to resign and, when she refused, fired her.
Perich filed a complaint with the Equal Employment Opportunity Commission, which ruled in her favor and authorized a lawsuit against the school. Attorneys representing Hosanna-Tabor Evangelical Lutheran Church and School argued that the "ministerial exception" under the First Amendment should apply in their client's case. The exception gives religious institutions certain rights to control employment matters without interference from the courts. The district court granted summary judgment in favor of the school, but the United States Court of Appeals for the Sixth Circuit overturned that ruling and remanded the case back to the lower court for a full trial on the merits. The court held that Perich's role at the school was not religious in nature, and therefore the ministerial exception did not apply.
Does the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship?
Holding
Yes. In a unanimous decision written by Chief Justice John Roberts, the Court held that Perich was a minister for the purposes of the Civil Rights Act's ministerial exception, dismissing Perich's suit and her claims for damages. Chief Justice Roberts described the history of the "ministerial exception", established by courts to prevent state interference with the governance of churches, a violation of the First Amendment's establishment and free exercise clauses. He rejected the EEOC and Perich's argument that these clauses of the First Amendment are irrelevant to Hosanna-Tabor's right to choose its ministers.
Chief Justice Roberts concluded that Perich indeed functioned as a minister in her role at Hosanna-Tabor, in part because Hosanna-Tabor held her out as a minister with a role distinct from that of its lay teachers. He also noted that Perich held herself to be a minister by accepting the formal call to religious service required for her position. Chief Justice Roberts acknowledged that Perich performed secular duties in her position and that lay teachers performed the same religious duties as Perich, but reasoned that Perich's status as a commissioned minister outweighed these secular aspects of her job. He also rejected the EEOC and Perich's suggestion that Hosanna-Tabor's religious reason for firing Perich was pretextual, explaining that the purpose of the ministerial exception is not limited to hiring and firing decisions made for religious reasons.
Don't forget to take a look at the Nebraska First Freedom Act for tomorrow:
Read: Nebraska Revised Stats sections 20-701 to 20-705 (link)
Passed in March 2024
Section 20-703 of the First Freedom Act provides that:
“Notwithstanding any other provision of law, state action shall not:
(1) Substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to that person's exercise of religion in this particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest; or
(2) Restrict a religious organization from operating and engaging in religious services during a state of emergency to a greater extent than the state restricts other organizations or businesses from operating during a state of emergency.”
The First Freedom Act is very broad: it “applies to all state and local laws, and the implementation of those laws, whether statutory or otherwise, regardless of whether adopted before or after July 19, 2024 [the date the act became operative].” Section 20-705
Moreover, “State action means the implementation or application of any law, including state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by state or local law.” Section 20-720 (5)
Thus, the law protects people of faith against the policies, rules, and regulations of state and local government, including public schools and state universities.
“Actual damages; Such preliminary and other equitable or declaratory relief as may be appropriate; and [wonderful, wonderful, wonderful] Reasonable attorney's fees and other litigation costs reasonably incurred.” Section 20-704(3)
As I often say, pro bono work pays well when you have a law awarding attorney’s fees!
The Government deserves a good slap on the hand when it restricts fundamental civil liberties. Fool around, find out!
I love this definition (Section 20-702(6):
“6)(a) Substantially burden means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion.
(b) Substantially burden includes withholding benefits, imposing criminal, civil, or administrative penalties or damages, or exclusion from governmental programs or access to governmental facilities.”
If state action imposes a substantial burden on religious exercise, the burden is unlawful unless “it is demonstrated that applying the burden to that person's exercise of religion in this particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”
The assertion of some broad “compelling” governmental interest is not enough. The state must show that granting a religious exemption to the particular person claiming religious liberty is necessary to further a compelling interest. Rarely. If ever, will that be the case. Even if the state passes that test, it must also show that it is the least restrictive means of furthering that particularized compelling interest.
The state must pass through what I call a gauntlet of superlatives under this test. It will rarely be able to do so—overriding importance and least restrictive means!
He opens a Masterpiece Cakeshop bakery in Omaha.
One day a customer walks into the shop and requests two things:
He wants Jack to create a custom wedding cake celebrating his same-sex marriage to another man.
He wants Jack to cater the wedding breakfast, by serving breakfast croissants and assorted fruit pastries.
Neb Rev Stat section 20-702:
(1) Exercise of religion means the practice or observance of religion and includes any action that is motivated by a sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief;
(6)(a) Substantially burden means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion.
(b) Substantially burden includes withholding benefits, imposing criminal, civil, or administrative penalties or damages, or exclusion from governmental programs or access to governmental facilities.
Section 20-702(5): “State action means the implementation or application of any law, including state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by state or local law;”
Notwithstanding any other provision of law, state action shall not:
(2) Restrict a religious organization from operating and engaging in religious services during a state of emergency to a greater extent than the state restricts other organizations or businesses from operating during a state of emergency.
How about a hypo involving religious liberty in the public schools.
Suppose a public school has a sex education class that includes units on homosexuality and transgenderism. If a religious family requests an opt-out from this unit, do they have religious liberty rights under the FFA to have their children excused from the unit?
Is there a substantial burden on the family’s religious exercise? If so, is there a compelling interest in this particular case?
Suppose a public school requires all teachers to take a mandatory DEI orientation program on sexual orientation and gender identity. Can religious teachers opt out?
