RECORDER Daily at Employment Law and Religious Liberty Clash at the Supreme Court

May 19, 2020 LAW BUSINESS TECHNOLOGY BUSINESS TECHNOLOGY LAW TECHNOLOGY LAW BUSINESS RECORDER daily at www.therecorder.com Employment Law and Religious Liberty Clash at the Supreme Court Two of the cases were argued via teleconference on May 11, when the court addressed the scope of the “ministerial exception,” a legal doctrine shielding religious organizations from otherwise applicable employment law claims. By Mark Loeterman This term the U.S. Supreme Court then sued their respective employ- will decide six cases dealing with ers for discrimination. In Biel v. St. religious liberty—an extraordinary James School, a fifth-grade teacher number given a docket totaling only was fired after she told her employ- 74 matters. Two of the cases were er that she had breast cancer and argued via teleconference on May would need time off for chemo- 11, when the court addressed the therapy treatments. In Morrissey- scope of the “ministerial excep- Berru v. Our Lady of Guadalupe, the tion,” a legal doctrine shielding reli- teacher’s employment contract was gious organizations from otherwise not renewed allegedly because of applicable employment law claims. age discrimination. The issue before The exception was recognized by the court is whether these plaintiff- a unanimous Supreme Court in its teachers qualify as “ministers” for 2012 decision in Hosanna-Tabor the purposes of the exception. The Evangelical Lutheran Church and outcome could impact an estimated Mark Loeterman of Signature Resolution. School v. Equal Employment Oppor- 300,000 teachers employed by reli- tunity Commission. It declared that gious schools around the country. which emphasizes the duties per- the First Amendment’s free exercise Competing Constitutional Values formed over an individual’s title or and establishment clauses work The cases reflect important com- training. They take an expansive together to “bar the government peting values: on one hand, the view of a minister’s role, regarding from interfering with the decision right of the state to protect workers teachers as the “primary agents” for of a religious group to fire one of its through enforcement of its employ- the transmission of faith from one ministers.” Thus, a religious institu- ment-discrimination laws, and the tion is afforded a complete defense right of a religious organization generation to the next. By contrast, to claims for discrimination and to make ecclesiastical decisions, the teachers contend that such a wage violations brought by an indi- including the selection of those who broad standard is tantamount to vidual who is deemed a “minister” personify its beliefs, without gov- an unwarranted “categorical immu- of the faith. ernmental intrusion. nity.” Why should teachers, many of Both appeals involve Catholic The defendant Catholic schools, whom have duties only incidentally school teachers whose employ- supported by the U.S. Solicitor connected to religion, be denied ment was terminated, and who General, favor a “functionality” test, legal remedies for discrimination? RECORDER They argue that the ministerial Avoiding Entanglement of the faith, isn’t that a pretty good exception should be narrowly inter- During oral argument, the justices sign the employee doesn’t have that preted to apply only to those occupy- expressed concern about how a sec- special role within the religious com- ing a position of spiritual leadership ular court can decide whether a reli- munity?” in the church, as indicated by title gious worker’s duties are sufficient On the conservative side, Chief and training, as well as job duties. to characterize that individual as a Justice John Roberts echoed the con- The ‘Hosanna-Tabor’ Decision “minister” of the faith, thus trigger- cerns found in Alito’s Hosanna-Tabor In Hosanna-Tabor, the court ing the exception. Their questions concurring opinion, saying “… differ- held that a “called teacher” at a showed a court wary of becoming ent faiths put different stock in titles Lutheran school could not sue her entangled in defining who is a min- … that’s pretty manipulable … you employer for disability discrimina- ister, and searching for practical lim- just start handing out titles to every- tion. That teacher, Cheryl Perich, its as to what constitutes “impor- body and then they are covered.” had alleged she was fired in viola- tant religious functions.” The law- Justice Neil Gorsuch suggested that tion of the Americans With Disabili- yers were peppered with provocative the parties’ “sincerely held religious ties Act after being diagnosed with hypotheticals: a math teacher who beliefs” should be the controlling narcolepsy. gives an hour of religious instruction principle. Justice Brett Kavanaugh While declining to adopt a “rigid for- weekly, a nun serving as a chemistry asked whether the exception extends mula” for deciding when an employ- teacher who starts class with the Hail to those who impart or model reli- ee qualifies as a minister, the court Mary, and an art teacher who edu- gious values as distinct from teach- instead looked at all the circumstances cates about art in the Vatican. Every- ing religious doctrine. of the plaintiff’s employment, includ- one agreed that the exception would Conclusion ing: whether the employer held the not apply where religious activities Where will the court draw the line? employee out as a minister, whether are de minimus, such as a coach who While impossible to predict, based the employee’s title reflected ministe- leads his team in an opening prayer. on the oral argument, the justices rial substance and training, whether Oral argument revealed the divide appear poised to reject a blanket the employee held herself out as a between liberal and conservative assertion that all teachers employed minister, and whether the employee’s justices apparent in other cases by religious groups are “ministers,” job duties included “important reli- involving hotly contested social and especially where religious functions gious functions.” cultural issues. Justice Ruth Bader are not a meaningful part of the job. Justice Samuel Alito authored a Ginsburg described the breadth of Similarly, it seems unlikely a for- concurring opinion (in which Justice the exception being advocated by malistic application of the Hosan- Elena Kagan joined) elaborating on the church schools as “staggering,” na-Tabor factors, which dispropor- the significance of formal ordination asking pointedly, “How can a Jewish tionately affects minority religions and designation as a “minister,” not- teacher be a Catholic minister?” Jus- lacking the same kind of hierarchical ing that the term is commonly used tice Sonia Sotomayor observed that structure as the Lutheran church, by many Protestant denominations, the plaintiff-teachers were fired not will prevail. We will soon learn if the but rarely if ever used in this way for teaching religion wrong, but for court can fashion a middle ground by other religions. Because virtually reasons of age and disability, and was that accommodates the interests of every religion is represented in the skeptical of conferring more power both sides. United States, he wrote, “it would be and deference to church-affiliated a mistake if the term ‘minister’ or the schools. Kagan noted that the central Mark Loeterman is a mediator at concept of ordination were viewed premise of the ministerial exception Signature Resolution. He has more as important to the central issue is that there are certain individuals than 30 years of experience handling of religious autonomy … Instead, within faith communities who have real estate, employment, contract and courts should focus on the function a distinctive role in propagating that complex business disputes. He can performed by persons who work for faith. “And if a position can be filled be reached at mloeterman@signa- religious bodies.” by any old person, not by a member tureresolution.com. Reprinted with permission from the May 19, 2020 edition of THE RECORDER © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected]. # REC-05202020-449522.

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