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.
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.