[guest post by JVW]

The U.S. Supreme Court declared today that the First Amendment limits the ability of courts to intervene in employment matters at private religious schools when the employee can be determined to have a ministerial aspect to his or her employment. The case, Our Lady of Guadalupe School vs. Morrisey-Berru, built upon an earlier decision in Hosanna-Tabor Evangelical Lutheran Church and School vs. EEOC eight years ago in which the Court unanimously ruled that “it is impermissible for the government to contradict a church’s determination of who can act as its ministers” by applying that “ministerial exception” from Hosannah-Tabor to teachers who are expected to incorporate religious instruction in the classroom:

A variety of factors may be important in determining whether a particular position falls within the ministerial exception. The circumstances that informed the Court’s decision in Hosanna-Tabor were relevant because of their relationship to Perich’s “role in conveying the Church’s message and carrying out its mission.” But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision 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 a private religious school’s mission.

Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties, such as educating their students in the Catholic faith and guiding their students to live their lives in accordance with that faith. Their titles did not include the term “minister” and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employees in the life of the religion in question is important. [Citations removed from original text.]

I had an interest in this case because Our Lady of Guadalupe is a parish in Hermosa Beach, just a couple of miles from where I live, and that case had been combined with a similar case, St. James School vs. Biel, which is the school attached to my own home parish. In what might be considered a pleasant surprise, Justices Stephen Breyer and Elena Kagan joined with the Court majority to deliver a 7-2 decision. Justice Clarence Thomas concurred, but went a bit further than the majority in reiterating “my view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial,’” apparently being unwilling to leave it to the courts to determine what defines a ministry. Justice Sonia Sotomayor wrote a dissent, joined by Justice Ruth Bader Ginsburg, arguing that the terms “minister” and “ministerial” should be applied far more narrowly and generally reserved to those who exercise a leadership role within the actual church, not just at a church school.

Religious freedom issues are now three-for-three in this court term, with today’s decision coming on the heels of last month’s decision in Espinoza vs. Montana Department of Revenue in which the Court ruled (5-4, conservatives vs. progressives) that the state could not prevent a taxpayer-funded scholarship intended for private school tuition from being used at religious schools. Also announced today was a decision in Little Sisters of the Poor Sts. Peter and Paul Home vs. Pennsylvania, a continuation of the battle the Little Sisters of the Poor has waged against a post-Obamacare mandate that religious employers’ health plans cover contraception usage by lay employees. Pennsylvania, joined by New Jersey, argued that the Trump Administration’s exemption of all religious organizations’ work from the contraceptive mandate was not allowable under the terms of the Affordable Care Act, and that it had not properly been formulated through administrative channels. The Court again decided by a 7-2 margin (same lineup as the Our Lady case) that the exemption was proper and legal, though the majority opinion, written by Justice Thomas, refused to go so far as to declare that the Little Sisters have a First Amendment right to forever refuse to pay for contraception coverage. This of course leaves the entire issue of whether a religious exemption ought to exist up to future administrations. Justice Alito made note of this in his concurring opinion, joined by Justice Gorsuch, and predicted that Pennsylvania and New Jersey would soon be back in the lower courts raising yet another objection to the ruling that would keep the Little Sisters busy defending their religious freedom.

A hallmark of the Roberts Court has been its careful — a critic might say timid — narrowing of the scope of the Court’s rulings. This term we have established that taxpayer-funded scholarships can’t be denied to religious school students, but the Court has been unwilling to categorically strike down Blaine Amendments in state constitutions. The Court has expanded the ministerial exception to include teachers at religious schools, but only if the school explicitly outlines the expectations it has for the teachers in advance, rejecting Justice Thomas’s belief that religious schools be granted “good-faith” deference. And they have continued to protect the Little Sisters of the Poor from requirements that they violate the dictates of their conscience, yet they frustratingly refuse to expand the ruling in Hobby Lobby and declare that religious orders do not have to fund contraception for lay employees. There is certainly some virtue in the Supreme Court refusing to act as a supra-legislature (except when it wants to), but at some point it would be nice if they would stand up for the Constitution.

– JVW