UPDATE: Our Lady of Guadalupe and the Ministerial Exception to Antidiscrimination Laws
Legal Sidebari
UPDATE: Our Lady of Guadalupe and the
Ministerial Exception to Antidiscrimination
Laws
Updated July 9, 2020
Update: The Supreme Court issued its opinion in Our Lady of Guadalupe on July 8, 2020, reversing the
Ninth Circuit decisions and ruling that the First Amendment barred courts from hearing the teachers’
employment discrimination claims. Justice Alito, writing the majority opinion, stated that a “variety of
factors” could determine whether a religious organization’s employment decisions are constitutionally
protected with respect to any given employee, clarifying that the specific factors noted in Hosanna-Tabor
were not “inflexible requirements” or “checklist items to be assessed. . . in every case.” Although the
teachers in the combined cases before the Court did not have the job title of “minister,” the Court
concluded that they nonetheless “performed vital religious duties” at the schools where they taught. In
the Court’s view, “educating young people in their faith, inculcating its teachings, and training them to
live their faith are responsibilities that lie at the very core of the mission of a private religious school.”
Accordingly, the Court said, intervening in such a dispute would “threaten[] the school’s independence in
a way that the First Amendment does not allow.” Justice Sotomayor dissented, joined by Justice
Ginsburg. She emphasized that “the teachers taught primarily secular subjects, lacked substantial
religious titles and training, and were not even required to be Catholic.” In addition to the teachers’
functions, the dissent’s analysis continued to focus on the other “objective and easily discernable”
factors highlighted in Hosanna-Tabor.
The original post from April 30, 2020, is below.
On May 11, the Supreme Court is set to hear oral argument by telephone in two cases involving a doctrine
known as the “ministerial exception.” The ministerial exception prevents courts from interfering with
churches’ decisions to fire, demote, or otherwise discipline their ministers—even if those actions would
otherwise violate federal laws prohibiting employment discrimination. Lower courts have divided on the
question of when a religious organization’s employee qualifies as a “minister” under this doctrine. Two
cases, combined under the caption Our Lady of Guadalupe School v. Morrissey-Berru, present the
Supreme Court with the opportunity to clarify when teachers at religious schools should be considered
ministers who are unprotected by federal antidiscrimination laws. This Legal Sidebar discusses Supreme
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LSB10455
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Court precedent establishing the ministerial exception and then focuses on the cases under review at the
Supreme Court, explaining their procedural history and the parties’ arguments.
Legal Background: Ministerial Exception
The Supreme Court has long recognized that the Religion Clauses of the U.S. Constitution’s First
Amendment prevent courts from adjudicating certain types of religious disputes. For example, the
Constitution protects churches’ freedom to decide “matters of church government,” allowing them to
select clergy without government interference. In a 2012 decision, Hosanna-Tabor Evangelical Lutheran
Church v. Equal Employment Opportunity Commission, the Supreme Court held that the First Amendment
requires a “ministerial exception” to federal antidiscrimination laws for “claims concerning the
employment relationship between a religious institution and its ministers.” In that case, a Lutheran school
al egedly unlawfully fired a teacher in retaliation for her threat to sue the school under the Americans with
Disabilities Act (ADA). The church had designated the fired employee as a “cal ed” teacher, meaning she
had completed a months-long colloquy program at a Lutheran school, been endorsed by the local Synod
district, and was elected by the local congregation as a commissioned minister. She taught religion classes
and led the students in prayer and religious services. Under the circumstances, the Supreme Court
concluded that the ministerial exception applied to this teacher, requiring the lower court to dismiss her
employment discrimination suit.
The Court emphasized four factors in holding that the teacher in Hosanna-Tabor qualified as “a minister
covered by the ministerial exception.” First, the Court noted that the church labeled her “as a minister,
with a role distinct from that of most of its members.” Second, the Court stressed that the church gave her
this title only after “significant . . . religious training” and “a formal process of commissioning.” Third,
the teacher held herself out as a minister of the church, in part by claiming a federal tax exemption
available only to ministers. And fourth, the Court said that her “job duties reflected a role in conveying
the Church’s message and carrying out its mission.” The school described her role as teaching “the Word
of God,” and she led religious activities. The Court declined, however, to say whether any of these
factors, standing alone, could be sufficient to qualify a teacher as a minister. Accordingly, the Court left
open the question of whether a “lay” teacher—one not designated as a minister—who performed similar
religious job duties to the teacher in Hosanna-Tabor could also be considered a minister.
The Supreme Court’s decision was unanimous, but two Justices wrote separate concurrences stating their
own views on when employees should be considered ministers. Justice Thomas argued against the
multifactor test in the majority opinion, maintaining that courts should “defer to a religious organization’s
good-faith understanding of who qualifies as its minister” because “the question [of] whether an
employee is a minister is itself religious in nature.” Justice Alito, joined by Justice Kagan, said that rather
than focusing on the title of “minister,” “courts should focus on the function performed by persons who
work for religious bodies.” He suggested that courts should focus on “objective functions” critical to “the
autonomy of any religious group,” which he described as “roles of religious leadership, worship, ritual,
[or] expression.” In his view, this should include employees “who are entrusted with teaching and
conveying the tenets of the faith to the next generation.”
Procedural History
Biel v. St. James School
One of the two combined cases at the Court is Biel v. St. James School. While that appeal reached the
Supreme Court after the appeal in Our Lady of Guadalupe, the underlying opinion in Biel was issued first,
in December 2018, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. In Biel, a
teacher was fired from a Roman Catholic school after tel ing the school that she had been diagnosed with
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breast cancer and would have to take time off for treatment. She sued the school, arguing that her firing
violated the ADA. In response, the school invoked the ministerial exception, arguing that her employment
discrimination claim should be dismissed. After considering the four factors from Hosanna-Tabor, the
Ninth Circuit held that the ministerial exception did not shield the school from liability.
First, the appeals court said that the school had not designated the teacher as a minister, stating that there
was “nothing religious ‘reflected in’ [the teacher’s] title.” Second, the court noted that the teacher had
very little religious training—the teacher had received only a half-day training in Catholic pedagogy—
and the school did not have religious requirements for her position, as it did not require its teachers to be
Catholic. Third, the Ninth Circuit observed that the teacher did not refer to herself as a minister. It was
“only with respect to the fourth consideration” that the court believed the teacher had “anything in
common” with the teacher in Hosanna-Tabor. Both teachers taught religious classes and participated in
religious services. But the Ninth Circuit held that the fact that a teacher performs religious job duties was
not sufficient to qualify a teacher as a minister, stating that the ministerial exception should not apply
based solely on satisfying Hosanna-Tabor’s fourth factor. Moreover, the Ninth Circuit also concluded that
the Biel teacher’s religious job duties were not equivalent to the religious functions performed in
Hosanna-Tabor. Because the teacher in Biel did not lead prayers or mass, but only joined students in
those activities, the Ninth Circuit said that the teacher did not have “the kind of close guidance and
involvement” that the Hosanna-Tabor teacher had “in her students’ spiritual lives.”
In June 2019, the Ninth Circuit denied the school’s petition asking for al the Ninth Circuit judges to
reconsider the three-judge panel’s opinion. Nine judges dissented from the order denying rehearing en
banc, arguing that the panel’s opinion read the ministerial exception too narrowly, conflicting with
decisions from other federal courts of appeal and with Hosanna-Tabor itself. These judges also disagreed
with the Ninth Circuit decision in Our Lady of Guadalupe School, described immediately below.
Our Lady of Guadalupe School v. Morrissey-Berru
Our Lady of Guadalupe School, the lead case at the Supreme Court, is another Ninth Circuit decision,
issued in April 2019. The plaintiff al eged that a Catholic school violated the federal Age Discrimination
in Employment Act (ADEA) when it fired her. In a short, unpublished, and nonprecedential opinion, the
Ninth Circuit concluded that the teacher was not a minister for purposes of the ministerial exception and
that her ADEA claim could proceed. The court observed that the employee’s “formal title of ‘Teacher’
was secular,” that she “did not have any religious credential, training, or ministerial background,” and that
she “did not hold herself out to the public as a religious leader or minister.” The school did not require its
teachers to be Catholic and, according to the plaintiff, did not “require teachers to have background,
training, or schooling in religion or Catholic pedagogy.” The Ninth Circuit said that the teacher did have
“significant religious responsibilities,” including teaching religion classes, leading the students in prayer,
helping to plan Mass once a month, and directing an annual Easter play. But, citing Biel, the court held
that the job-duties factor, standing alone, is “not dispositive under Hosanna-Tabor’s framework.”
Arguments at the Supreme Court
Both schools appealed the Ninth Circuit decisions to the Supreme Court and have filed combined briefs in
advance of the May 11 oral argument. The schools argue that the ministerial exception should apply when
“an employee of a religious organization performs important religious functions,” claiming that Hosanna-
Tabor’s fourth factor alone, focusing on job duties, should be enough to qualify a teacher as a minister.
They ask the Court to adopt Justice Alito’s concurring view in Hosanna-Tabor that the exception “should
apply to any ‘employee’ who leads a religious organization, conducts worship services or important
religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The schools assert that
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both before and after the Court’s decision in Hosanna-Tabor, most federal courts of appeal focused on
employees’ job functions.
The schools claim that the teachers in the two combined cases meet this test because both “taught the
Catholic religion to their students for hours every week.” Although the schools argue that teaching
“devotional classes” should be enough to show that an employee performs a religious function, they say
that the teachers also “engaged in other forms of religious expression, worship, and ritual with their
students,” including joining their students in prayer, and for the teacher in Our Lady of Guadalupe School,
leading some religious activities. Final y, the schools also assert that although both employees had the
title of “teacher,” rather than “minister,” further factual context, including the schools’ hiring practices
and religious canons, showed that these titles were ministerial.
The United States Solicitor General has filed an amicus brief in support of the schools and wil be
participating in oral argument. (Although the Equal Employment Opportunity Commission (EEOC), the
federal agency in charge of enforcing federal employment discrimination laws, filed an amicus brief in
support of the teacher in the Ninth Circuit proceedings in Biel, the EEOC has not participated in briefing
before the Supreme Court.) The United States’ arguments largely echo those of the schools, saying that
“the most important consideration” in applying the ministerial exception is whether an employee
performs important religious functions. The Solicitor General acknowledges that the Hosanna-Tabor
opinion noted four factors, but asserts that the three other considerations in that case should not prevent a
court from “applying the ministerial exception to an employee who clearly serves an important religious
function; they merely made [that] case an especial y easy one.” The United States also stresses that both
teachers in the combined cases “accept[ed] the responsibility to convey the Catholic Church’s teachings
to the next generation” and “agree[d] to model the Catholic faith.”
In response, the teachers argue that the Supreme Court should use Hosanna-Tabor’s “multi-factor
inquiry—starting with the trio of formalistic, objective indicia of ministerial status” embodied in the first
three factors. They say that focusing on “formal indicia” such as title and religious training “promotes
values of accountability and transparency,” giving employees fair notice about the nature of their
employment. The teachers recognize that religious duties are also a “critical” aspect of the inquiry, but
assert that the Court should not adopt the religious functions inquiry as a “freestanding test.”
The teachers contend that they should not be considered ministers under the factors outlined in Hosanna-
Tabor. Among other arguments, the teachers point out that where an organization does not require
employees to follow the employer’s religion—as with the Catholic schools in these cases—it would make
“no sense to cal [a non-Catholic teacher] a Catholic minister.” In characterizing their religious functions,
they emphasize that they primarily performed “secular duties,” arguing that the “sporadic” performance
of religious activities should not transform teachers into ministers. Teaching a class on religion cannot
automatical y be sufficient, they say, given that “many teachers at wholly secular schools” also teach
about religion in a way that does not involve “conveying” a church’s message.
Considerations for Congress
Some Members of Congress have filed an amicus brief in support of the schools, suggesting
congressional interest in the case. The scope of the ministerial exception has significant implications for
enforcement of federal antidiscrimination laws. Although some of these laws already include carve-outs
for certain religious organizations, the ministerial exception creates a broader immunity. For example, as
the teachers and amici have pointed out in Our Lady of Guadalupe School, Title VII of the Civil Rights
Act of 1964 and the ADA both state that they wil not prevent religious organizations from employing
“individuals of a particular religion,” essential y al owing religious organizations to discriminate on the
basis of religion. The ministerial exception, by contrast, al ows religious organizations to fire certain
employees for any reason, including (for example) racial discrimination
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unconnected to any religious motivation. One amicus group has argued that if the Court adopts the
schools’ preferred test for determining whether an employee is a minister, it would eliminate civil rights
protections for “over one mil ion health care workers currently employed at religious hospitals.” The
schools, however, cal such predictions “fanciful,” saying that although the prevailing test asks about
religious functions, only a “handful” of cases to date have involved “religious healthcare defendants.”
And in their view, any employees who perform an “important religious function” should be included in
the exception.
Because it is constitutional y grounded, the scope of the ministerial exception may not be altered by
Congress. Accordingly, if the Supreme Court ruled for the schools and held that these teachers should be
considered ministers, Congress could not diminish the scope of the ministerial exception if it disagreed
with the Court’s ruling. However, if the Court ruled for the teachers and if Congress wanted to expand or
clarify the scope of statutory exceptions for religious organizations, it could amend those provisions to
provide greater protection for religious organizations.
Author Information
Valerie C. Brannon
Legislative Attorney
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