Last term, the Supreme Court decided the case of Our Lady of Guadalupe v. Morrissey-Berru, holding that the First Amendment protects religious institutions from having to follow statutory employment regulations in regard to employees who can be characterized as having a religious ministerial role. Doron Kalir, Clinical Professor of Law at Cleveland-Marshall College of Law, argues that the decision puts at risk employment protections for a wide range of persons who may be employed by religious institutions. Robert Cochran, Louis B. Brandeis Professor of Law Emeritus, Pepperdine University School of Law, argues that the decision squarely affirms the protections for free religious exercise that the framers and the Constitution guaranteed.
Professor Kalir, your witness...
The opening clauses of the First Amendment concern religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Few legal formulas have attracted so much ink – or caused so much confusion – as these two clauses: At times, they seem complementary; at others, they seem at odds with each other.
In 1952, the Supreme Court held – quite uncontroversially – that The First Amendment guarantees the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952). In 2012 the Court went a step further, holding that the First Amendment creates a “ministerial exception” – in essence, a claim-free zone, barring federal court from entertaining any employment discrimination claim, so long as the employee in question is a “minister” and the employer “a religious institution.” In that case –Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), – the “minister,” however, was an elementary-school teacher, and the “religious institution” was the school. Still, the Court ruled that the teacher cannot sue the school, based in part on her title (“Minister of Religion, Commissioned”), and the fact that she taught religion studies.
Last Term, the Court accepted another case – Our Lady of Guadalupe. In that case, two fifth-grade teachers sued their schools – one based on age discrimination, the other based on medical-condition discrimination. The Court rejected both claims, and, along the way, expanded the Ministerial Exception significantly. Writing for the a 7:2 Court, Justice Samuel Alito explained that “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.’” While assuring that “this does not mean that religious institutions enjoy a general immunity from secular laws,” Alito still maintained that the Court “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.”
This seemingly innocuous language went well beyond any previous definition of the “Ministerial Exception.” Thus, it could potentially vastly expand the “general immunity” zone guaranteed by the Court to religious institutions. The first to recognize that potential was Justice Sonia Sotomayor, who dissented from the Opinion (together with Justice Ruth Bader Ginsburg): “The Court’s conclusion portends grave consequences. As the Government explained, ‘thousands of Catholic teachers’ may lose employment-law protections because of today’s outcome. Other sources tally over a hundred thousand secular teachers whose rights are at risk. And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”
Indeed, in “expanding the ministerial exception far beyond its historic narrowness,” as Justice Sotomayor reminded us, the Court placed many an employee in grave legal danger – denying them, in essence, the protection of anti-discrimination laws in the workplace, laws that were enacted preciselyfor that reason.
But the exposure of these employees is only a part of the problem. Shortly before rendering Our Lady of Guadalupe, the Court issued Bostock v. Clayton County, a seminal opinion protecting LGBTQ employees from discrimination at work “based on sex.” That protection, of course, would not apply where the Ministerial Exception applies. The wider the definition of the Ministerial Exception, the narrower the protection of anti-discrimination laws would be.
And the reach of Our Lady of Guadalupe could potentially be even wider. In a case heard this Term – Fulton v. City of Philadelphia – petitioners cited the expansion of the Ministerial Exception as a reason to overrule one the Court’s most famous church-state precedents, Employment Division v. Smith, 494 U.S. 842. That case, with the Court’s opinion authored by Justice Antonin Scalia, explained that a State is free to enact a generally-applicable law even if it may interfere with an otherwise free exercise of religion: “[This Court had] never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The Fulton petitioners argued, among others, that Justice Scalia’s opinion was written before the Court recognized the Ministerial Exception, let alone in its expanded form in Our Lady of Guadalupe.
In sum, beware of Supreme Court cases flying under the radar. Few have heard of Our Lady of Guadalupe, which generated a fraction of the buzz that Bostuck has. Even fewer have heard of the Ministerial Exception, or understand its growing influence. But the continued relation between Church and State is in play, no less. Perhaps we should pay more attention.
Professor Cochran, … your witness.
In a day when 5-4 Supreme Court decisions on controversial issues are the order of the day in recent years 9-0 (Hosanna-Tabor) and 7-2 (Our Lady of Guadalupe) majorities have recognized the importance to religious institutions and to the broader community of a robust ministerial exception. Religious organizations should control their own employment decisions. As the Court said in Guadalupe, the ministerial exception protects a religious institution’s “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 Court has recognized that the ministerial exception is rooted in both the Religions Freedom and the Non-establishment clauses of the Constitution. Government control of religious groups’ employment choices would both interfere with religious groups’ freedom to expound and model their religious beliefs and would be an exercise of control over the religious organization and would require substantial entanglement of the state with the religious organization.
The Religion Clauses grew out of centuries of European struggle between church and state, with each alternately exercising control over the other. One of the primary means of control was control of personnel. (Control of religious personnel is one of the primary means today by which China seeks to control religious organizations.) Of course, one of the main reasons many colonists came to America was to escape government control of their congregations. The United States founders (both in state and federal constitutions) wisely came to adopt what some commentators have called “articles of peace,” separating religious and state institutions. A key component of that separation is the right of each institution to make its own employment choices.
A wonderful illustration of the early recognition of the “ministerial exception,” though not by name came when Archbishop John Carroll asked President Jefferson’s “sentiments” “on certain discretionary points affecting the selection of the functionaries to be named” in the Diocese of New Orleans. Secretary of State James Madison responded in a letter dated 20 November 1806:
“[A]s the case is entirely ecclesiastical, it is deemed most congenial with the scrupulous policy of the Constitution in guarding against a political interference with religious affairs, to decline the explanations which you have thought might enable you to accommodate the better, the execution of your trust, to public advantage.”
From the earliest Free Exercise cases, the Supreme Court has recognized that freedom of religious belief is absolute, but that the state may impose some limits on religious behavior. The extent of the limits on behavior has varied under Supreme Court doctrine and federal and state legislation over the years, but there has been broad agreement that freedom of belief is immune from governmental interference. At first glance, it might appear that the Ministerial Exception has to do with behavior—hiring and firing–and should be subject to some state regulation. But a religious congregation’s control of its personnel is intimately related to its beliefs. A religious organization perpetuates its beliefs through its personnel.
Some have suggested that the ministerial exception should be limited to those persons who are charged by the religious organization with teaching religious doctrine and it may be that the Supreme Court will go in this direction. The cases resolved so far by the Court have involved teachers who had religious teaching responsibilities. Some might suggest that there are “purely secular” occupations within religious organizations—janitorial services or the teaching of math, for example—that should be subject to state control. Drawing a line among employees between those with secular and those with religious responsibilities would itself be a matter of religious doctrine. Drawing such a line would be grounded in the religious understanding of the Enlightenment, that religion can be cordoned off in the private realm of one’s life. But religions that are worth their salt (cf. Matthew 5:13) speak to all of life. And it may be that the influence of religious organization employees is “more often caught than taught.” A rather striking example was shared by Stanford law professor Michael McConnell, one of the foremost religion scholars in the United States. He attributes his Christian faith to the influence of one of the janitors at the church in which he was raised, more so than the teaching and preaching. In my view, religious organizations should have control of all of their employment decisions. Personnel teach with their lives, as well as their words. A robust ministerial exception is important for society as a whole, as well as for religious organizations. It is good that we have a number of institutions that teach and model different lifestyles. By allowing institutions to establish different teachings and different patterns of behavior, citizens can observe and choose what behaviors and what institutions they want to follow. Religious institutions have many beliefs that they should be allowed to teach and model for the common good. When religious groups are allowed to fully express their beliefs and act unfettered from the government, we have a more robust pluralism. This yields a more robust democracy. More diverse beliefs being expressed and reflected give citizens more options to observe and consider.