Supreme Court Watch – Who Is a “Minister”?
John Christie • May 26, 2020
A couple of terms ago, a Supreme Court case that attracted attention involved a Colorado baker who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
(1918). The Court ultimately never resolved the merits of the case and sent it back for further consideration after concluding that the Colorado Civil Rights Commission — that had ruled against the baker — had treated him unfairly by being too hostile to his religious beliefs.
In the present term, another case pending before the Court is attracting considerably less attention but involves a similar issue in a different context; that is, the extent to which the government’s interest in protecting certain rights applies when a religious interest is invoked as a defense. Our Lady of Guadalupe School v. Morrissey-Berru.
In 1998, Agnes Morrissey-Berru began working as a substitute teacher for Our Lady of Guadalupe School, a Catholic parish school in Hermosa Beach, Cal. The following year, the school offered Morrissey-Berru a full-time teaching position, a job she held for 15 years. In 2014, the school refused to renew her contract. She alleged the decision was based on age discrimination in violation of the federal Age Discrimination in Employment Act; the school argued the decision related to the budget and her teaching performance.
Morrissey-Berru’s job did not require her to be Catholic, and indeed, she was not a practicing Catholic. At the time she was hired, she had no religious training or certification. The school did not require her to obtain any religious training until 14 years into her tenure, when she took two classes on church history. Her employment benefits were governed by the “Lay Employees Benefit Guide.” The school gave her no religious title. She taught her students reading, writing, science, social studies, and religion. She led her students in saying a Hail Mary prayer once a day and took her students to weekly mass. Her students were required to lead mass periodically; she helped them prepare but did not lead any religious services.
In court, the school asserted that the case must be dismissed without inquiry into the reasons for the termination because the teacher was a “minister” subject to the “ministerial exception” the Supreme Court first recognized in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). In that case, the Court held that the First Amendment’s prohibition against government interference with the “free exercise” of religion protects the employment relationship between a religious organization and its “ministers,” preventing the government from “requiring a church to accept or retain an unwanted minister.” In the opinion of the Court, the “ministers’ exception” was not limited to “the head of a religious congregation” and in that case applied the exception to an employee who had formally accepted a call to religious service and was serving as a teacher.
In doing so, the Court declined to adopt a rigid formula for deciding when an employee qualifies as a “minister.” Instead, the majority opinion by Chief Justice Roberts looked to “all the circumstances of her employment,” identifying four factors as significant.
First, the church had held the teacher “out as a minister, with a role distinct from that of most of its members.” Second, the teacher’s “title as a minister reflected a significant degree of religious training followed by a formal process of commissioning.”
Third, the teacher “held herself out as a minister of the Church by accepting the formal call to religious service.” Fourth, the teacher’s “job duties reflected a role in conveying the Church’s message and carrying out its mission.” She “taught her students religion four days a week and led them in prayer three times a day.” She not only took her students to chapel services, but also led those services on occasion, “choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible.”
It would appear that none of the first three factors prompting the Court in Hosanna-Tabor to conclude that the teacher in that case was a “minister” would apply to Morissey-Berru. She was not held out as a minister; she did not have a significant degree of religious training and had never accepted a formal call to religious service. Presumably because of this, in its briefing before the Supreme Court, Our Lady of Guadalupe School argued that an employee’s religious functions “alone” should be enough to count him or her as within the ministerial exception and that Morissey-Berru met that test because she exercised “important religious functions” of worship, ritual, and expression. The school claims that it should make no difference whether the “religious functions” are a significant part of the teacher’s job — the exception should apply if they engage in any of these functions for any amount of time.
Abandoning the totality-of-the-circumstance test adopted in Hosanna-Tabor just eight years ago in favor of a test that would apply the exception should any “religious function” be performed would significantly expand the scope of the ministerial exception. Not only would the number of employees who count as “ministers” be expanded, but also the kinds of claims precluded by that classification, including claims of sexual harassment, racial discrimination, and unequal pay. Although the case now before the Court again involves a teacher employed by a religious school, in the past religious organizations have asserted the exception against secretaries and receptionists, administrative or support staff, computer technicians and facilities workers among others.
For these reasons, this case deserves more attention than it has received to date. Oral argument before the Court was originally scheduled for April 1 but was delayed until May 11, one of 10 cases argued early in May by telephone conference because of covid-19 concerns. Normally a decision would be expected by the end of June but, because of the argument’s delay, a decision may be delayed as well.
Common Sense for the Eastern Shore
These are the words from Emma Lazarus’ famous 1883 sonnet “The New Colossus” inscribed on a bronze plaque on the pedestal of the Statue of Liberty. In 1990, Congress reaffirmed this vision of America by establishing the Temporary Protected Status program. TPS is designed to provide humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. In its present form, the TPS legislation gives the Secretary of the Department of Homeland Security responsibility for the program. However, the legislation prescribes the kind of country conditions severe enough to warrant a designation under the statute, the specific time frame for any such designation, and the process for periodic review of a TPS designation which could culminate in termination or extension. All initial TPS designations last from six to eighteen months. Before the expiration of a designation, the statute mandates that the Secretary shall review the conditions in the foreign state to decide if the conditions for the designation continue to be met, following consultation with appropriate agencies of the government. Extension is the default; the designation “shall be extended” unless the secretary affirmatively determines that conditions are “no longer met.” ------------------------------------------------------------- A massive earthquake devastated Haiti in January 2010, and precipitated an unprecedented humanitarian crisis. Shortly after, then-DHS Secretary Janet Napolitano, after consultation with the State Department, designated Haiti for TPS due to “extraordinary conditions.” Haitian nationals in the United States continuously as of January 12, 2010, could thus apply for TPS, and obtained the right to remain and work in the U.S. while Haiti maintained its TPS designation. Napolitano set the initial TPS designation for 18 months. As Haiti’s deterioration worsened, successive DHS secretaries have extended this program. Gang violence and kidnappings have spiked. In 2021, a group of assailants killed Haiti’s then-President Jovenel Moïse. In 2023, another catastrophic earthquake hit Haiti. In 2024, in response to these conditions, then-DHS Secretary Alejandro Mayorkas once again extended and redesignated Haiti for TPS, this time effective through February 3, 2026. During the 2024 election cycle, the GOP candidate, Donald Trump clearly indicated that time had not tempered his views on Haiti, characterized by him as a “shithole country” during his first term. He stated that when elected, he would “absolutely revoke” Haiti’s TPS designation and send “them back to their country.” On December 1, 2025, Kristi Noem, DHS secretary in the second Trump administration, announced, “I just met with the president. I am recommending a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies. Our forefathers built this nation on blood, sweat, and the unyielding love of freedom, not for foreign invaders to slaughter our heroes, suck dry our hard-earned tax dollars, or snatch the benefits owned to Americans. We don’t want them, not one.” So says the official responsible for overseeing the TPS program. And one of those (her word) “damn” countries is Haiti. Three days before making the above post, Secretary Noem announced she would terminate Haiti’s TPS designation as of February 3, 2026. Five Haitian TPS holders filed suit in federal court in Washington initially seeking an injunction against the termination of the Haitian TPS program pending the completion of the litigation. These plaintiff TPS holders are not “killers, leeches, or entitlement junkies.” They are instead a neuroscientist researching Alzheimer’s disease, a software engineer at a national bank, a laboratory assistant in a toxicology department, a college economics major, and a full-time registered nurse. The case was assigned to district court judge Ana Reyes who granted the plaintiffs’ injunction request on February 2, 2026, by way of an 83-page opinion. The plaintiffs charge that Secretary Noem preordained her termination decision because of hostility to non-white immigrants. According to Judge Reyes, “This seems substantially likely. Secretary Noem has terminated every TPS country designation to have reached her desk — twelve countries up, twelve countries down.” Judge Reyes also decided that Noem’s conclusion that Haiti (a majority non-white country) faces only “merely concerning” conditions cannot be squared with the “perfect storm” of “suffering and staggering” humanitarian toll described in page after page of the record in the case. In Judge Reyes’ view, Noem also ignored Congress’s requirement that she review the conditions in Haiti “after consulting with appropriate agencies.” Indeed, the record indicates she did not consult other agencies at all. Her “national interest” analysis focuses on Haitians outside the United States or here illegally, ignoring that Haitian TPS holders already live here and legally so. And though Noem states that the analysis must include “economic considerations,” Judge Reyes concluded Noem ignored altogether the billions that Haitian TPS holders contribute to the economy. The administration’s primary response in the litigation has been to assert that the TPS statute gives Secretary Noem “unbounded” discretion to make whatever determination she wants, any way she wants. Yes, Judge Reyes acknowledges, the statute does grant Noem some discretion. But, in Judge Reyes’ opinion, “not unbounded discretion.” To the contrary, Congress passed the TPS statute to standardize the then ad hoc temporary protection system; in Judge Reyes’ words, "to replace executive whim with statutory predictability.” The administration also argued that the harms to Haitian TPS holders were “speculative” if they are forced to return to Haiti. Because the State Department presently warns, “Do not travel to Haiti for any reason,” the administration asserts that harm is “speculative” only because DHS “might not” remove them. However, according to Judge Reyes, this argument fails to take Secretary Noem at her word: “We don’t want them. Not one.” The public interest also favors the injunction, in the opinion of Judge Reyes. Secretary Noem complains of the strains that unlawful immigrants place on our immigration-enforcement system. Noem’s answer is to turn 352,959 lawful TPS Haitian immigrants into unlawful immigrants overnight. Noem complains of strains to our economy; her answer is to turn employed lawful immigrants who contribute billions in taxes into the legally unemployable. Noem complains of strains to our health care system. Noem’s answer is to turn the insured into the uninsured. “This approach is many things – but the public interest is not one of them,” according to Judge Reyes. The opinion of Judge Reyes concludes: “Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the law to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that. The administration has already appealed. John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Gov. Wes Moore signed legislation on February 17, 2026, to prohibit State and local jurisdictions from deputizing officers for federal civil immigration enforcement activity. The law, created under SB 245/HB 444 , is effective immediately. “In Maryland, we defend Constitutional rights and Constitutional policing — and we will not allow untrained, unqualified, and unaccountable ICE agents to deputize our law enforcement officers,” Moore said. “This bill draws a clear line: we will continue to work with federal partners to hold violent offenders accountable, but we refuse to blur the lines between state and federal authority in ways that undermine the trust between law enforcement and the communities they serve. Maryland is a community of immigrants, and that's one of our greatest strengths because this country is incomplete without each and every one of us.” “As an immigrant, this bill is deeply personal to me,” said Lt. Gov. Aruna Miller. “Immigrants make Maryland stronger every day, and our communities are safer when everyone feels protected and valued. This legislation ensures that our law enforcement resources remain focused on keeping Marylanders safe, not on actions that create fear in our neighborhoods. I thank the bill sponsors and Governor Moore for their leadership in ensuring Maryland remains a place where dignity and opportunity go hand in hand.” U.S. Department of Homeland Security Immigration and Customs Enforcement, also known as ICE, established its 287(g) program to authorize local law enforcement officials to perform federal civil immigration enforcement functions under ICE’s oversight. Under SB 245/HB 444, State and local jurisdictions in Maryland are prohibited from engaging in such agreements. Any local jurisdictions with standing 287(g) agreements must terminate them immediately. The legislation does not: Authorize the release of criminals Impact State policies and practices in response to immigration detainers that are issued by the U.S. Department of Homeland Security Prevent the State or local jurisdictions from continuing to work with the federal government on shared public safety priorities, including the removal of violent criminals who pose a risk to public safety Prevent State or local jurisdictions from continuing to notify ICE about the impending release of an individual of interest from custody or from coordinating the safe transfer of custody within constitutional limits State and local law enforcement will also maintain the ability to work with the federal government on criminal investigations and joint task forces unrelated to civil immigration enforcement. Any individual who is charged with a crime is entitled to due process and, if convicted, must serve their sentence.
And now, the enhanced Affordable Care Act subsidies that many Americans, including farmers, relied on to purchase health insurance are gone, having expired at the end of December.
When I practiced law, much of my litigation involved issues arising under federal antitrust laws. The Department of Justice (DOJ) was my frequent adversary in court. In some cases, DOJ challenged a client’s conduct as anticompetitive. In others, they claimed an intended client merger would create a monopoly. Some of these DOJ court battles were won, others were not. Overall, I had great respect for DOJ lawyers. They were professional, well prepared, and dedicated to their mission of seeing justice done. They were courteous, honest, and forthright with the courts before which we argued our cases. In those days, without resorting to social media or press conferences, the DOJ spoke entirely through its court filings. Although as an advocate I took issue with various DOJ investigatory decisions as well as decisions to initiate litigation, I never thought politics was involved. Post-Watergate internal rules strictly limited communication with any figures at the White House. Not so, it seems, anymore. Beginning last January 20, all of this changed rapidly and spectacularly . On March 14, Trump triumphantly arrived at the main DOJ building in D.C. to be welcomed by a group of carefully selected VIPs. He was greeted by Pam Bondi, his chosen new attorney general, who exclaimed, “We are so proud to work at the directive (sic) of Donald Trump.” Bondi’s boast that the DOJ now worked at the president’s behest was something never said before and, in effect, surrendered the department’s long and proud independence. And Bondi’s comment was not an empty gesture. As chronicled by reporters Carol Leonnig and Aaron Davis in their new book, Injustice: How Politics and Fear Vanquished America’s Justice Department , within hours of being sworn in, Trump and his lieutenants began punishing those at the Justice Department who had investigated him or those he considered his political enemies. Career attorneys with years of experience under many administrations were fired or reassigned to lesser work, or they resigned. As Leonnig and Davis report, what followed was “the wholesale overthrow of the Justice Department as Trump insert[ed] his dutiful former defense attorneys and 2020 election deniers atop the department.” [Source: Injustice , p. xix.] In the place of years of experience, the new team appears credentialed simply by loyalty to the president’s causes. The DOJ’s conduct in court has since caused damage to judicial and public faith in the integrity and competence of the department. Just Security is an independent, non-partisan, daily digital law and policy journal housed in the Reiss Center on Law and Security at the New York University School of Law. Since January 20, it has documented federal judicial concerns about DOJ conduct. In 26 cases, judges raised questions about DOJ non-compliance with judicial orders and in more than 60 cases, judges expressed distrust of government-provided information and representations. This count was taken the day after a federal court dismissed the DOJ cases against former FBI Director James Comey and New York Attorney General Letitia James. [Source: Just Security , “The ‘Presumption of Regularity’ in Trump Administration Litigation,” Nov. 20, 2025.] As summarized by the Georgetown Law Center’s Steve Vladeck, “It’s one thing for the Department of Justice to so transparently pursue a politically motivated prosecution. But this one has been beset from the get-go with errors that remotely competent law students wouldn’t make. Indeed, it seems a virtual certainty that the Keystone Kops-like behavior of the relevant government lawyers can be traced directly to the political pressure to bring this case; there’s a reason why no prosecutors with more experience, competence, or integrity were willing to take it on.” [Source: One First , Nov. 24, 2025.] Rather than accept criticism and instead of trying to do better, Bondi’s DOJ and the Trump administration lash out in a fashion apparently aimed at demeaning the federal judiciary. At a recent Federalist Society’s National Lawyers Convention, Deputy Attorney General Todd Blanche, one of Trump’s former defense attorneys, attributed the Trump administration’s myriad losses in the lower federal courts to “rogue activist judges.” He added, “There’s a group of judges that are repeat players, and that’s obviously not by happenstance, that’s intentional, and it’s a war, man.” Deputy Chief of Staff Stephen Miller decries each adverse ruling against the Trump administration as just part of a broader “judicial insurrection.” Not to be left behind, Trump himself regularly complains of “radical left lunatic” judges. In addition to the harm these comments inflict on the federal courts, their premise is simply not true. According to a survey by Vladeck, as of Nov. 14, there were 204 cases in which federal district courts have ruled on requests for preliminary relief against the Trump administration. In 154 of them, district judges granted either a temporary restraining order, a preliminary injunction, or both. Those 154 rulings came from 121 district judges appointed by seven presidents (including President Trump) in 29 district courts. In the 154 cases with rulings adverse to the Trump administration, 41 were presided over by 30 Republican-appointed judges, fully half of whom were appointed by President Trump. No, it is no longer your grandfather’s Department of Justice. John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
The Salisbury City Council has appointed longtime public servant Melissa D. Holland to fill the vacancy in District 2. Holland was selected on Dec. 1 after the council reviewed several applicants. A 27-year resident of Salisbury, Holland brings more than 20 years of experience in government, education, and administration. As executive assistant to the president of the University of Maryland Center for Environmental Science, she currently oversees operations, budgeting, communications, and planning. Before joining UMCES, Holland worked for nearly 11 years with the Wicomico County Council, gaining extensive experience in legislative procedure, constituent services, research, and budget preparation. Her background includes positions with the Wicomico County Board of Education, the State of Maryland’s Holly Center, and multiple early-learning programs. Approved by a 3-1 council vote, Holland was selected based on her administrative expertise and long-standing community involvement. (Salisbury’s City Council is now comprised of only women.) She has a bachelor’s degree in legal studies from Post University and an associate degree from Wor-Wic Community College. She has also served as PTA president at East Salisbury Elementary and Wicomico Middle School. In her application, Holland emphasized her commitment to maintaining transparency in city government and ensuring that District 2 residents remain informed and represented. “I plan to be well-informed on the issues that matter to the citizens of Salisbury and to listen to their concerns carefully,” she wrote. “I want to make a positive and lasting impact on our city.” Holland’s appointment restores the City Council to full membership as it faces debates over budgeting, infrastructure planning, and local governance initiatives. She is expected to begin constituent outreach immediately and participate fully in the selection of the next council president.
Voters in Hurlock have delivered sweeping changes in this year’s municipal election, as Republican and GOP-aligned candidates won key races there. The results mark a setback for Democrats and a significant political shift in a community that has historically leaned Democratic in state and federal contests. The outcome underscores how local organizing and turnout strategies can have an outsized impact in small-town elections. Analysts also suggest that long-term party engagement in municipal contests could shape voter alignment in future county and state races. Political analysts warn that ignoring municipal elections and ceding them to the GOP could hurt the Maryland Democratic Party in statewide politics. Turnout increased by approximately 17% compared with the 2021 municipal election, reflecting heightened local interest in the mayoral and council races. Incumbent Mayor Charles Cephas, a Democrat, was soundly defeated by At-Large Councilmember Earl Murphy, who won with roughly 230 votes to Cephas’s 144. In the At-Large Council race, Jeff Smith, an independent candidate backed by local Republicans, secured a 15-point win over Cheyenne Chase. In District 2, Councilmember Bonnie Franz, a Republican, was re-elected by 40 percentage points over challenger Zia Ashraf, who previously served on the Dorchester Democratic Central Committee. The only Democrat to retain a seat on the council was David Higgins, who was unopposed. The Maryland Republican Party invested resources and campaign attention in the Hurlock race, highlighting it on statewide social media and dispatching party officials, including Maryland GOP Chair Nicole Beus Harris, to campaign. Local Democrats emphasized support for Mayor Cephas through the Dorchester County Democratic Central Committee, but the Maryland Democratic Party did not appear to participate directly.
