Our Lady of Guadalupe School v. Morrissey-Berru (2020): An Extension of the "Ministerial Exception" to the Detriment of Federal Discrimination Laws

It is becoming increasingly difficult to ignore the questions raised by the separation of church and state. Year after year, the Supreme Court has been called upon to express its opinion on this subject, whether in the area of the exercise of religious freedoms, the financing of religions, or the independence of the clergy. The latter topic was recently the issue at hand in a U.S. Supreme Court case, Our Lady of Guadalupe School v. Morrissey-Berru (2020), in which the Court recognized a ministerial exemption for religious institutions from federal employment discrimination law [1]. The Court's decision is highly controversial because it prevents claims of discrimination against a religious institution from being pursued. Because of its broad reading of the ministerial exception, the U.S. Supreme Court has undermined the fight against discrimination and has deprived employees of religious institutions the constitutional protections to which they are entitled.

The case involved the termination of Morrissey-Berru’s teaching contract by Our Lady of Guadalupe School, a church-run institution in the archdiocese of Los Angeles. She filed a discrimination claim under the Age Discrimination Employment Act, to which the school responded that the First Amendment to the Constitution protected their so-called “ministerial exception.” The Supreme Court was asked the following question: are church-run schools entitled to a religious exemption from federal anti-discrimination laws when it comes to hiring and firing teachers who provide religious instruction?

In July 2020, the U.S. Supreme Court ruled in a 7-2 decision that the First Amendment’s Religion Clauses foreclose the adjudication of Morrissey-Berru’s employment-discrimination claims. The majority opinion claimed that "[t]he religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission” [2]. According to the Court,  “judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate” [3].

Some commentators believe that this decision "protects and promotes the true pluralism the First Amendment is designed to foster, not just for Catholics, but for all faiths" [4]. However, this argument overlooks the fact that teachers and other employees will suffer without recourse since they now lack constitutional protection against discrimination. As Justice Sonia Sotomayor emphasized in her dissenting opinion, "this sweeping result is profoundly unfair. Recently, this Court has lamented a perceived 'discrimination against religion.’ Yet here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs” [5].

Since Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America (1957) [6], which protected the right of religious institutions "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine," the U.S. Supreme Court is increasingly granting deference to the church, now to the point of sanctioning employment discrimination [7]. 

Recognized for the first time in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the ministerial exception is a judge-made doctrine that aims to prevent any government interference or judicial review in major choices faced by religious institutions, such as internal employment disputes regarding selection, control, and removal of employees who are designated as ministers or perform other religious duties [8]. Consequently, federal discrimination laws do not apply to religious organizations' selection of religious leaders. In reaching this conclusion, the Supreme Court took into consideration four criteria: 1) "the formal title given Perich by the Church,” 2) “the substance reflected in that title,” 3) “own use of that title,” and 4) “the important religious functions performed for the Church" [9]. Nevertheless, the Court stated that there is "no rigid formula" for determining which employees will be subject to the ministerial exception [10]. 

The use of this definition leaves many unanswered questions in this case [11]. Indeed, the teacher only gave a few hours of religious instruction per week and was not a member of the clergy. The majority of her time was in fact devoted to secular activities. The qualification of "church minister" the Court makes is therefore open to criticism. The individual involved in this case is not a religious leader, but merely an elementary school teacher. The fact that she worked for a religious institution should in no way prevent her from defending her rights to be treated fairly and to invoke the intervention of a court to remedy her legal injury.

With this decision, the Supreme Court has accentuated the existing power imbalance between religious institutions and their employees by extending the definition of "minister" even to those who only occasionally teach religious lessons. Using the First Amendment’s guarantee of freedom of religion to justify or excuse discrimination is not only harmful to the individuals concerned, but also to society at large. 

References

[1] Our Lady of Guadalupe School v. Morrissey-Berru 140 S. Ct. 2049 (2020)

[2] 140 S. Ct. 2049 (2020). 

[3] Ibid.

[4] Eric C. Rassbach & Margaret G. Graf, “Reflection on Our Lady of Guadalupe School v. Morrissey-Berru and the Place of Religious Education in American Society”, Harvard Law Review, Nov 20 2020

[5] Our Lady of Guadalupe School v. Morrissey-Berru 140 S. Ct. 2049 (2020), (Sotomayor, Sonia, dissenting).

[6] Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116, (1957)

[7] 344 U. S. 94, 116, (1957)

[8] Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC 565 U.S. 171 (2012)

[9] 565 U.S. 171 (2012)

[10] Ibid.

[11] The Ministerial Exception (Editorial), The New York Times, Jan 12 2012