Religious Instruction Under the Supreme Court's Microscope

President Donald Trump listens at an event on religious freedom during the United Nations General Assembly, Monday, Sept. 23, 2019, in New York. From left are Maria Luiza Viotti, U.N. Chef de Cabinet, UN Secretary General António Guterres, Trump, Vice President Mike Pence and Secretary of State Mike Pompeo. (AP Photo/Evan Vucci)

In early April, the Supreme Court will hear two cases (consolidated) that will examine the terminations of two teachers who taught at private Catholic schools in the Los Angeles area.  Kristen Biel was a fifth grade teacher at St. James School while Agnes Morrissey-Berru was a teacher at Our Lady of Guadalupe School.

Previously, the Supreme Court recognized the ministerial exception which precludes the government from any action in the ability of religious institutions to deal with employment decisions.  The ministerial exception has its roots in the Civil Rights Act of 1964 which can be traced even further back to the First Amendment’s Free Exercise Clause.

The Catholic schools in these cases are arguing that the employment decisions are no different than those settled in the Hosannah-Tabor case in 2012.  In a decision authored by Chief Justice Roberts in a 9-0 unanimous decision, the employment discrimination case against the Lutheran Church was dismissed.  Importantly, Alito filed a concurring opinion which Justice Elena Kagan joined.  Thomas also filed a concurring opinion.  This are important as noted below.

The facts in Hosannah-Tabor differ somewhat from the facts in these cases.  In the former, the teacher in question was required to, as a matter of employment, become an ordained minister in the Lutheran Church.  No such requirement was present in the new cases.  But, this is where Alito’s concurrence comes in.  He, along with Kagan, asserted that the mere requirement of ordination should not prevail as deciding the issue, but the job duties associated with the position in the religious context should.  They noted that different religions have different definitions of “minister” with some requiring formal training and others not.  Becoming a priest or nun for a Catholic is vastly different from becoming a Jewish rabbi (which are more formal processes) which is different than a Protestant “minister” or Buddhist priest for that matter.  In other words, formal ordination as a minister need not be a trigger for the ministerial exception.

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In fact, the District Court found that both teachers in this case provided significant religious, Catholic instruction.  For example, Morrissey-Berru taught religion four times a week for a total of 120 minutes of instructional time.  The District Court dismissed the case, but the Ninth Circuit reinstated it arguing that the facts in Hosannah-Tabor were vastly different from the facts here and therefore not controlling.

The schools, in both cases, dismissed the teachers alleging average or subpar performance.  In the case of Biel, she developed breast cancer and asked for, and was denied, a leave of absence.  She then sued under disability discrimination laws.  With Morrissey-Berru, she alleges she was terminated because of her age (60) and sued under age discrimination laws.

In effect, the Court is now being asked to determine the limits of the ministerial exception in such cases.  With Hosannah-Tabor, the issue was more clear-cut.  Both schools, in this instance, are asking the Court to, in effect, adopt the Alito/Kagan concurrence in that case.  A concurrence does not have the same legal effect of the majority ruling, but simply expounds upon the majority decision, and although agreeing with the majority outcome, may do so for other articulated reasons.  For example, the Thomas concurrence would grant even greater latitude to religious institutions than the Alito concurrence would allow.  The Thomas concurrence basically tells the government to stay out of religion altogether in two short paragraphs.

And, in fact, the petitions in this case on behalf of the schools repeatedly cite the Alito/Kagan concurrence.  While the Roberts opinion is rather strict, it fails to account for religious school employees who perform an important function, namely religious instruction, even in the context of  secular subject matter, with the title of “teacher,” not “minister.”  The arguments of the teachers in this case go out of their way to point out that the employment contracts repeatedly say “teacher,” not “minister” or “religious instructor.”  They ignore the fact that both teachers were required to teach religious instruction (120 minutes a week in one case), attend masses, participate and explain the liturgy, and generally teach even secular subjects with a Catholic twist.

It is unfortunate that a breast cancer survivor or a senior citizen lost their jobs in these cases, but facts are facts and the First Amendment is the First Amendment.  These are the indisputable facts in the case of one of the teachers:

Respondent concedes the crucial facts of this case: that she taught religion class, prayed with her students, daily led them in praying the Hail Mary, regularly took them to Mass, and incorporated the faith into her curriculum. BIO i, 5. She also does not contest that she taught fundamental Catholic doctrines through worship, prayer, and scripture readings; trained her students in core practices of the Catholic faith; directed religious performances by her students; and took her students to serve at the altar at the Cathedral of Our Lady of Angels. Pet.8-9. Those facts are more than enough to show that she performed a crucial role in conveying Petitioner’s faith to the next generation.

If it walks like a duck and talks like a duck…

These cases illustrate the hypocrisy of the Left who prefer this mythical high wall of separation between church and state… except when that wall operates to the detriment of their preferred outcomes.  What they want is a wall with a bunch of tiny windows and doors through which they can crawl to undermine religion.

The problem, as this writer sees it, may be Roberts.  It is telling that he did not join the Alito concurrence and may have seen that opinion as a bridge too far.  One of the petitions states that a ruling here would have an effect on other employees at religious schools or camps or whatever.  They seriously state that cafeteria workers could be discriminated against if the schools prevail here.  This is scaremongering at its must absurd extreme.  But even if one of these lay workers serves to undermine the religious underpinnings of the religious organization they work for, they too should be terminated.

If I were a betting person, I would not place much faith in Roberts.  He will squirm his way through legal niceties and sleight of hand to give the Left a victory.  This is an opportunity for Roberts to prove his alleged conservative mettle, but I doubt it.   Expect a 5-4 decision in favor of the teachers and allowing their cases to go forward.

Majority:  Roberts, Kavanaugh (just because), Ginsburg, Breyer and Sotomayor.

Dissent: Alito, Gorsuch, Thomas and Kagan.