--Finish our discussion of Mahmoud and the blog post oh Hypos
--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)
--City of Boerne case (casebook p. 1214-1223)
A short primer on the Blaine Amendments
The Federalist Society has put up a short animated primer on the Blaine Amendments, featuring a law professor who, clearly, has a face for radio. For more on the Trinity Lutheran case, go here.
1. "The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the 'most rigorous' scrutiny."
2. "The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."
3. But—there is always a “but” when Chief Justice Roberts writes the Court’s opinion—there is a footnote—footnote 3—in which the Court says (edited from linked opinion):
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
So this case deals with these particular facts and no others—it is like a ticket for this train only and this day only. Footnote 3 may be the price Roberts paid to get the 7 to 2 majority.
4. It is also significant to note that Justices Thomas & Gorsuch explicitly refused to join footnote 3. Gorsuch explained that the general thrust of the opinion is inconsistent with any attempt to limit the case to its specific facts because the Court’s decisions should be “governed by general principles, rather than ad hoc improvisations” and “the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”
Do you agree with Gorsuch?
The issue in Trinity Lutheran is not whether, under the Establishment Clause, government may include religious ministries and persons under neutral programs involving government subsidies. That is clear:
Remember Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:
"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."
Now the issue is whether, under the Free Exercise Clause, government must include religious ministries and persons.
If Missouri adopts an otherwise generally available program awarding grants to nonprofit daycare centers to pay for playground safety upgrades, must Missouri include religious daycare nonprofits under the Free Exercise Clause? Is a program that explicitly excludes religious daycare centers neutral and generally applicable under Smith and Lukumi? If not, does Missouri demonstrate a compelling state interest and least restrictive means to justify the religious exclusion under Lukumi toothy strict scrutiny?
Why did Missouri decide to exclude religious nonprofits from the playground grant program?
Is this reason compellingly important?
Even if it is, is there a less restrictive means of advancing the state's interest?
From Oyez:
Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal and the denial of the motions to reconsider and amend the complaint.
Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment's Equal Protection Clause?
A group called Defending Education has written a sample email for parents to send concwerning their opt-out rights. Link
Here is the sample email:
Sample email. Please copy or edit.
Dear Superintendent X, School Board Members, Principal X, Assistant Principal X, Director of Student Services X,
Based on our religious beliefs, and the June 27, 2025 Supreme Court ruling Mahmoud v. Taylor, I am hereby immediately opting out my children,____________________________________________________________,from all LGBTQ+ related texts, surveys, and curricula lessons in their public schools, regardless of when that material is to be presented during the school day.
I am further exercising my right to opt out my children from mandatory preferred pronoun usage and shared-sex bathroom and locker room policies at their public schools, which are predicated on the district leadership’s beliefs about gender identity that run contrary to our religion and are a violation of both constitutional and statutory law.
I look forward to receiving communication from the district as to how you will implement the Mahmoud v. Taylor decision. Specifically, I look forward to learning about how and when you intend to be compliant with it and plan to alert parents about related changes to the district’s gender identity policies. I also look forward to learning about your plan to notify us about any upcoming LGBTQ+ lessons, including those on gender identity, before they are taught to our children in their public schools. Finally, I would also like to know what discipline will be applied if a teacher/principal/school does not honor this opt out request.
Please confirm receipt of my request. My expectation is that my request be implemented on the first day of school.
Sincerely,
Parent/Advocate/Guardian
Ministerial exception article in today's NYT. Excerpt:
But 23 weeks into the pregnancy, on Sept. 12, Ms. Bonilla learned that she would be suspended from her current job as a kindergarten teacher at St. Mary, a Catholic school in Vineland, N.J. The reason, she says, was her surrogacy....
“They’re basically investigating whether I can or cannot do with my body what I want,” said Ms. Bonilla, who is a practicing Catholic.
Mr. Hogan did not respond to questions about his comments to Ms. Bonilla.
In 2024, Pope Francis labeled surrogacy “despicable” and called for a universal ban on the practice because of its “commercialization” of pregnancy. Catholic teaching also prohibits in vitro fertilization, an increasingly common treatment that is frequently used in surrogacy.
Ms. Bonilla declined to disclose the payments she had received for her surrogate pregnancies, citing the terms of those contracts. But fees for such a pregnancy can range vary, sometimes exceeding $50,000 plus medical expenses, according to a Columbia Law School report and people looking for surrogates in recent years.
Mahmoud is a case in which the Board of Education of the Montgomery County Public Schools sought to indoctrinate young elementary school children (pre-K-5th grade, children as young as 3 or 4 years old) with LGBT-themed storybooks designed to “disrupt” the thinking of these young children “about sexuality and gender.” The Board wanted to disrupt the children’s thinking about “heternormativity” and “cisnormativity.”
What do you think about these goals for public education?
One of the storybooks included a discussion guide that asserts “When we are born, our gender is often decided for us based on our sex…But at any point in our lives we can choose to identify with one gender, multiple genders, or neither gender.”
Another book features a Prince who, after rejecting many worthy ladies as a possible bride, decides to marry a knight and “The whole kingdom…applauds on the two men’s wedding day.”
Yet another reading book for elementary students, with the amazing title, Born Ready: The True Story of a Boy Named Penelope is the story of a girl who doesn’t “feel” like a girl. She even tells her mother that she wants to be “like Papa” and asks her mom to “help me to be a boy.”
Teachers in the school district were instructed by a “guidance document” how to respond to classroom discussion about these controversial issues.
For example, if a student were to say that two men cannot get married, the guidance document suggested that teachers should respond by saying “Two men who love each other can decide they want to get married.” What is even worse, if a child should claim “that a character can’t be a boy if he was born a girl,” teachers were encouraged to respond “That comment is hurtful.”
The storybook program was supposedly designed to teach students to read, but these LGBT storybooks were being used by the school to “disrupt” students’ traditional moral and religious beliefs about marriage and gender.
Is this program appropriate for pre-K to 6th grade students? Is it a reasonable one-size-fits-all reading curriculum for tender age children?
At oral argument, Justice Jackson argued that there is no burden on religious freedom because, if parents don’t like the government-school curriculum, they can send their children to a private religious school.
What do you think of that argument?
Was Jackson correct when she argued that there is no burden because you can simply send your children to private schools? Is $15,000 for each child over the course of each year for 13 years not a burden on religious liberty? Free public education is the single largest benefit most families receive from state and local government!
Justice Alito explicitly rejected Jackson’s argument. He said: “And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.” p.1 of edited opinion.
Here is a longer excerpt edited from the linked opinion:
Finally, we reject the alternatives offered to parents by those who would defend the judgment below. The first of those proposed alternatives is the suggestion that any parents who are unhappy about the instruction in question can simply “place their children in private school or . . . educate them at home.” Brief for Religious and Civil-Rights Organizations as Amici Curiae 14; accord, Brief for National Education Association et al. as Amici Curiae 15; Brief for American Civil Liberties Union et al. as Amici Curiae 10; Tr. of Oral Arg. 61–62. The availability of this option is no answer to the parents’ First Amendment objections. As we have previously held, when the government chooses to provide public benefits, it may not “condition the availability of [those] benefits upon a recipient’s willingness to surrender his religiously impelled status.”
Finally, here is the doctrine declared by Mahmoud:
Justice Alito decided that the burden on the right of parents to direct the religious upbringing of their children was so severe in Mahmoud as to trigger strict scrutiny under the Free Exercise Clause “regardless of whether the law is neutral and generally applicable.” In other words, the precedent the Court applied was Yoder (and Pierce v Society of Sisters), not Employment Division v Smith. This is huge.
Here is how Justice Alito explained this new doctrine:
“[T]he burden in this case is of the exact same character as the burden in Yoder. The Board’s policies, like the compulsory-attendance requirement in Yoder, ‘substantially interferes with the religious development of the parents’ children. And those policies pose ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill in their children.’”
Justice Sotomayor, joined by Justice Kagan and Justice Jackson, dissented. She argued that the Majority’s protection of parental rights “offers no limiting principle.”
“Given the great diversity of religious beliefs in this country,” she argued, “countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.” She went on to state that she believes that the decision in Mahmoud “threatens the very essence of public education.”
Is this a reason not to allow opt outs? Or does it demonstrate how great the need for opt outs (or school choice) really is?
Is it possible for public schools to adopt a one-size-fits-all curriculum that truly fits all families in a Nation as divided as ours is?
One commentator asserts that the most significant right recognized in Mahmoud is "the right to receive advance notice of classroom learning materials and activities." He goes on to say that "This means Mahmoud just might break the political logjam that has been holding up a critically important reform--the creation of a thorough and efficient web-based approach to letting parents know exactly what their children are learning in school." I think the point here is that sunlight is the best disinfectant. Thoughts?
Some progressive lawyers argue that these books are not so bad? Why do these religious parents get so upset about harmless children's books, they argue?
Suppose the shoe were on the other foot? Suppose a public school in Mississippi had a reading curriculum with books such as A Girl Named Jane: Born a Girl Always a Girl, and another entitled Romans Chapter 1: Daddy Teaches His Son About Sex and Marriage?
Or suppose in Prince and Knight, after Prince marries his knight in shining armor, instead of everyone celebrating the marriage, the book reads: "The King and the Queen wept sorrowfully, because there would be no future queen or future heir to the throne. And all the people wept with the King and Queen."
Now which families would wish to opt out? Would Justice Sotomayor now support opt outs for dissenting families? Should secular progressives be able to opt out of reading books that undermine the values they teach at home?
Do the parental rights vindicated in Mahmoud protect only religious parents with free exercise claims? What about the Free Speech Clause as a source of parental rights to opt out of compelled curriculum?
Now assume a public school district adopts a policy allowing biological boys who identify as girls to change clothes for PE class in the girls locker room. Parents of girls who do not wish to change in front of biological boys request an opt out from the locker room policy based upon their religious beliefs about gender and modesty. Does Mahmoud apply?
Or what about an opt out from a compelled pronoun policy that requires all students to use a transgender student's preferred pronouns. Opt out available?
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.”
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."
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?
