Opinion: Will the Supreme Court Protect ‘Ministers’ from Their Church?

New York Times

March 26, 2020

By Linda Greenhouse

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

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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