Supreme Court Leans Toward New Religious Carve-outs in LGBTQ-related Case

The U.S. Supreme Court heard arguments Monday on ministerial exemptions for employment at religious schools. (Washington Blade file photo by Michael Key)

(WB) The U.S. Supreme Court seems poised to grant religious schools an expanded ministerial exemption in employment decisions based on oral arguments Monday in litigation that could have a significant bearing on LGBTQ teachers at these institutions.

The cases, Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel, were brought by Catholic schools seeking immunity under the law to conduct employment practices for non-ministerial jobs — such as the hiring and firing of teachers — consistent with their religious beliefs under the ministerial exemption granted by the First Amendment.

The schools raised the claims in response to a lawsuit from teachers alleging wrongful termination. One alleges she was terminated based on age discrimination, the other based on disability after having to request time off to treat cancer. The schools have maintained the termination was the result of the teachers not fulfilling their ministerial roles at the schools.

Predictably, the five conservative justices on the bench seemed amenable to the idea of an expanded ministerial exemption, while the four liberal justices were against it.

U.S. Associate Justice Ruth Bader Ginsburg was blunt in her questioning about the possible implications of a ruling in favor of Catholic schools, calling it “staggering.”

“Suppose a teacher who does everything the two teachers in these cases do as a faith leader also reports a student’s complaint of sexual harassment by a priest and is terminated,” Ginsburg said. “She has no remedy?”

U.S. Associate Justice Clarence Thomas, on the other hand, appeared to justify a decision for the Catholic schools by indicating the work of teachers there would be considered a violation of the Establishment Clause at public schools.

“It’s my understanding they actually let them from time to time in prayer or took them to service, things like that,” Thomas said.

The cases have broad implications for workers at religious schools, including LGBTQ teachers. The ruling could impact whether gay teachers have a legal right to sue a Catholic school if they’re terminated for entering into a same-sex marriage, or transgender teachers if they’re fired for undergoing a gender transition.

Shannon Minter, legal director for the National Center for Lesbian Rights, said based on the arguments the court seems ready to grant Catholic schools the considerable leeway they’re requesting.

“It seems likely there are enough votes to broaden the scope of the so-called ‘ministerial exception’ for religious employers, which would give religious schools and other religious employers more leeway to fire workers without regard for anti-discrimination laws, including those that protect LGBTQ people,” Minter said.

Jeffrey Fisher, an attorney with the Menlo Park, Calif.-based law firm O’Melveny & Myers LLP, represented the teachers who were terminated and estimated hundreds of thousands of lay teachers across the country may be affected.

“The schools’ argument would strip more than 300,000 lay teachers in religious schools across the country of basic employment law protections — and necessarily included in this number are teachers who teach so-called secular classes,” Fisher said.

The Trump administration backed the arguments from the religious schools during oral arguments by sending — completely on a voluntary basis because the U.S. government isn’t a party in the litigation — a high-level attorney to argue in favor of an expansive ministerial exemption.

Assistant to the U.S. Solicitor General Morgan Ratner maintained a ruling in favor of an expanded ministerial exemption would be consistent with Supreme Court precedent.

“Under Hosanna-Tabor, those teachers are ministering to their students by teaching them how and why to be Catholic, so this should fall within the ministerial exemption regardless of what the school calls them,” Ratner said.

Much of the argument in favor of the expanded ministerial exemption rested on the Supreme Court’s 2012 decision in Hosanna-Tabor v. EEOC, the 2012 ruling that determined federal discrimination laws don’t apply to religious organizations’ selection of ministerial leaders. However, that decision didn’t specify which employees are considered ministers and which aren’t.

Eric Rassbach, an attorney with the Becket Fund for Religious Liberty who represented the Catholic schools before the court, said the court’s decision in Hosanna-Tabor compels to rule in favor of an expanded ministerial exemption.

“Eight years ago in Hosanna-Tabor — the pretext inquiry, the notice requirements, the idea that freedom of association makes freedom of religion entirely unnecessary — all were raised in Hosanna-Tabor and rejected unanimously,” Rassbach said. “Eight years later, responses to arguments are not any more convincing. In short, there’s no reason for the government to get into the business of teaching religion.”

U.S. Associate Justice Elena Kagan sought to clarify the implication of what Rassbach was seeking by peppering with questions on hypothetical jobs for which he thinks the ministerial exemption should apply.

A math teacher who is told to teach something about Judaism for 10 minutes a week? “Probably not.” A press or communications staffer who prepares press releases for a religious institution? “That should fall within it.” An employee at a soup kitchen who distributes religious literature and leads grace before meals? “My guess is that that would be de minimus.” A church organist who provides musical accompaniment and selects hymns for religious services? “I think that would fall within it because that’s an important religious function.”

A nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs? “I think a nurse doing that kind of counseling and care may well fall within the exception.”

Fisher seized on Rassbach’s admission nurses at Catholic hospitals would have no recourse under non-discrimination law with an expanded ministerial exemption as evidence of the breadth of such a decision.

“If you write an opinion that says all-important religious functions trigger the ministerial exception, I don’t think there’s any way to escape — you’re going to have the cases with the nurses, you’re going to have the cases with the football coaches, you’re going to have the cases with the summer counselors,” Fisher said. “The only thing the other side says to that in our brief is, ‘Well, those cases haven’t been brought so much,’ but my answer to that is that just shows how revolutionary their case would be because there’s no good answer to those cases and Mr. Rassbach himself said nurses would be covered.”

U.S. Associate Justice Sonia Sotomayor also expressed fear about the potential ruling for an expansive ministerial exemption because the two teachers in the cases “are not claiming that they were fired because the school thought they were teaching religion wrong.”

“You’re asking for an exception to the Family & Medical Leave Act, to wage and hourly laws to all sorts of laws, including breach of contract, because at least one of the schools here, contract with the teacher says they won’t discriminate because of the teachers' age or disability,” Sotomayor said.

The conservative justices, nonetheless, devised scenarios in their questioning that appeared to justify having an expanded ministerial exemption for employment at religious schools.

U.S. Associate Justice Neil Gorsuch raised the possibility of a religious school with limited funds that hires a full-time teacher, but asks the teacher to act as a religious leader part-time, or a religion that believes all its members are leaders of the faith.

“You said we shouldn’t focus on their sincerely held religious beliefs, but that is what we do elsewhere in First Amendment jurisprudence,” Gorsuch said. “We don’t second guess those sincerely held religious beliefs. Why would we do it here?”

Although the issue of titles was brought up as a way to distinguish between ministerial and non-ministerial positions, U.S. Associate Justice Samuel Alito said that would be insufficient titles don’t always give a clear indication of the role.

“How does it even help to understand the person’s role?” Alito said. “Suppose you have two people who do exactly the same thing in two different religiously affiliated schools but one has a title and the other one doesn’t have a title, other than the title of the teacher. Why should the presence or absence of this title make any difference?”

It’s true LGBTQ people, as of now, have extremely limited explicit non-discrimination protections under federal law, but the Supreme Court will soon issue a ruling on Title VII of the Civil Rights Act of 1964 that will determine whether the law covers LGBTQ people. A ruling for Catholic schools in these cases would undercut an LGBTQ-inclusive in the Title VII litigation.

Further, a ruling in favor of an expanded ministerial exemption would undermine the laws in 21 states and D.C. that bar anti-LGBTQ discrimination in the workforce. Not just LGBTQ people would be affected. A ruling for Catholic schools would also allow them to discriminate based on race, national origin, disability or any other category in non-ministerial jobs.

U.S. Associate Justice Stephen Breyer noted various categories of people with histories of discrimination against which a religious institution could lawfully terminate if the ruling came out in favor of the Catholic schools.

“This case has to do with a religious organization might dismiss someone on the basis of race or religion or national origin…where that isn’t related to the carrying on of the religious activity, for example, a person who’s handicapped,” Breyer said.

Minter echoed that concern in his assessment of the oral arguments based on the way judges appeared to lean in favor of an expanded ministerial exemption.

“If the schools win today’s cases, religious schools would be able to fire many more LGBTQ teachers based purely on anti-LGBTQ animus or for any other reason, regardless of whether they have a religious reason for doing so,” Minter said.

A decision in the case is expected before next month at the end of the term for the Supreme Court.


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