Supreme Court Holds That Teachers At Religious Schools Are Covered By Ministerial Exception

On July 8, 2020, the Supreme Court decided Our Lady of Guadalupe School v. Morrissey-Berru, applying the “ministerial exception” for the first time since its landmark decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC. In Hosanna Tabor, the court held that the First Amendment requires an exception to federal employment discrimination laws for religious organizations with respect to employees who perform religious functions, such as teaching the faith, preaching, representing or speaking for the religious organization, or holding and exercising ecclesiastical authority. At the core of the court’s analysis was an examination of the functions performed by the employee, although the court also considered other factors, such as the employee’s training and title. The court continued the practice adopted in the courts of appeal of using the word “minister” as a term of art to describe such employees, while making clear that designation as a “ministerial employee” did not depend on ordination or title and recognizing that many faiths did not even use the term “minister.”

The courts of appeal have applied Hosanna Tabor with different levels of deference to religious groups on the questions of what constitutes religious functions and who constitutes a “minister.” At the narrowest extreme was the Ninth Circuit, which held in Our Lady of Guadalupe School and a companion case, St. James School v. Biel, that Catholic elementary school teachers – who taught religion and led their classes in prayers – were not “ministers” pursuant to Hosanna Tabor, notwithstanding the position of the Catholic Church that such employees were essential teachers of the Faith. The Ninth Circuit held that the analysis should not be limited to the functions or duties performed by the teachers, but should also focus on their titles, training, credentials and “ministerial background.” Indeed, the Ninth Circuit held that “courts should begin by deciding whether [] three circumstances – a ministerial title, formal religious education, and the employee’s self-description as a minister – are met and then, in order to check the conclusion suggested by those factors, ask whether the employee performed a religious function.”

The Supreme Court, in an opinion by Justice Alito, reversed the Ninth Circuit, holding that the ministerial exception depends primarily on what the employee does, not on a formal title or any particular level of training, background or rank. The ministerial exception arises from a religious organization’s constitutional right to govern itself free from state interference. At the core of this right is the right to select, discharge and discipline “ministers;” those who perform the religious functions of the organization. The First Amendment was adopted against the backdrop of British government control over religious bodies, including the regulation and licensing of clergy. It was the specific intention of our Founders that the government have no say in a church’s selection of its ministers. Accordingly, teachers who teach religion to children in a religious school constitute a clear case for the application of the ministerial exception.

Justice Alito’s opinion goes further, however. In Hosanna Tabor, Justice Thomas wrote a separate concurrence to stress that a court’s inquiry into whether an employee was a “minister” could, itself, be a prohibited religious entanglement. Such an inquiry could easily involve the court second-guessing the religious organization’s own beliefs about the religious significance of certain tasks or roles. This would involve the court in making prohibited religious determinations in violation of the establishment clause, and usurping a religious organization’s right to self-governance in violation of the free exercise clause. Accordingly, Justice Thomas argued for absolute deference to the religious organization, under which any good faith assertion by the religious organization that an employee was a “minister” could not be challenged in court. Justice Alito does not go that far but, quoting Justice Thomas’ concurring opinion in Hosanna Tabor, he warns lower courts not to second-guess religious organizations on the question of what is religiously significant to them. (In Sterlinski v. Catholic Bishop, 934 F.3d 568 (7^th Cir. 2019), our firm’s James G. Geoly recently argued and won a decision on this very ground. The Seventh Circuit deferred to the Catholic Church’s understanding of the role of an organist at mass rather than allow a secular court contest over whether playing the organ was of sufficient religious significance to render him a “minister.”)

Thus, Justice Alito criticizes the Ninth Circuit for appearing to require any particular level of training, or “commissioning” as a minister, or any other specific qualification for an employee to be a minister, since religious organizations are free under the constitution to establish whatever requirements for ministry they see fit. (“The Ninth Circuit’s rigid test produced a distorted analysis.”) He also rejects out of hand, and for the same reasons, the respondents’ argument that only “co-religionists” (i.e., members of the same faith) can qualify for the ministerial exception. Instead, Justice Alito reaffirms that “What matters, at bottom, is what an employee does.” Since religious education is as the core of a church’s religious purpose, those who teach religion are ministers, even if they also teach other subjects, and even if they do not hold an official ecclesiastical title. A church’s right to select those who will impart the faith to children is exactly what the ministerial exception was intended to protect.

Justice Alito was joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch and Kavanaugh. Justice Thomas filed a concurring opinion joined by Justice Gorsuch, reiterating his position of absolute deference to the religious organization on the question of who is a “minister.” He noted that Justice Alito’s opinion was “a step in the right direction” because it rejected the argument that a “minister” had to be a co-religionist. But he observed that second-guessing religious organizations’ “good faith understandings of which individuals are charged with carrying out the organizations’ religious missions” is equally offensive to the constitution. Justice Sotomayor dissented, joined by Justice Ginsburg.