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Associate Justice Clarence Thomas, appointed by President George H. W. Bush, sits with fellow Supreme Court justices for a group portrait at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. (AP Photo/J. Scott Applewhite)

The US Supreme Court heard oral arguments in a case called Our Lady of Guadalupe School vs. Morissey-Berru.  It was consolidated with another case.  At issue was the employment decision of the school and whether it was in violation of employment discrimination laws.  In one case, the teacher in question did not have her contract renewed after she asked for a leave of absence because she was diagnosed with breast cancer.  In the other case, the teacher did not have her contract renewed, she alleges, because of her age.  That would be Ms. Morissey-Berru.

Under normal circumstances, one would think this was obviously a case of employment discrimination since you cannot simply fire someone because they have breast cancer or becomes pregnant.  However, eight years ago the Supreme Court in Hosanna Tabor Lutheran Church and School vs. EEOC established the “ministerial exception” to employment laws.  In that case, a teacher was terminated when she returned from a leave of absence.  At issue was the fact she taught a religion class several times a week and led the students in prayer.  In effect, the teacher in that case was “ministering to the faithful.”  Therefore, the ministerial exception applied and the First Amendment demanded that the government could not interfere in the employment decisions of religious employers.

The schools prevailed in the lower court which relied on the Hosanna-Tabor decision.  However, the Ninth Circuit Court of Appeals reversed stating that the religious instruction was not substantial enough to warrant protection under the ministerial exception, although that court noted that teaching religious ideas was part of their job descriptions.

The Supreme Court is hearing oral arguments via teleconferencing and there are apparently some new rules in effect.  Instead of the free-for-all questioning, each Justice is afforded, in order of seniority, time to question the lawyers representing both sides.  One of the great things about this is we finally get to hear Justice Clarence Thomas’ voice and his very to-the-point, cut-through-the-bullcrap questions.

The liberal Justices on the Court were skeptical of the school’s claims and inferred that what the schools preferred was too broad a stroke.  Ginsburg, in particular, asked who, in the school’s opinion, would not be a “minister?”  They replied perhaps the office secretary, a janitor or the IT guy.  Then, along with the other liberals, they started to go off the rails.  What about the basketball coach who said a prayer before a game?  What about the art teacher who taught about art in the Vatican?  And the hypotheticals came fast and furious.  In effect, they were searching for a limiting principle.  Sotomayor’s questioning revolved around their legal claims.  They were not being terminated for their religious views being antithetical to the school, but because of their “conditions” which are covered under federal and state employment laws.

When it was the lawyers for the teachers’ turn, the questioning was just as tough.  They seemed to argue that one should first look at the title of the employee, in this case- teacher.  The lawyer- Jeffrey Fisher- seemed to suggest an avalanche of cases of apocalyptic proportions if they rule that all “important religious functions” trigger the ministerial exception.  He suggested that nurses working in religiously-affiliated hospitals would lose their employment protections.  Hence, the questioning came down to what is an “important religious function?”

In response to a question from Alito, Fisher seemed to concede that someone who taught religion exclusively in a religious school was getting closer to being a “minister,” but still not one for purposes of the exception.  He reminded Alito that the teachers in question only taught Catholicism for “40 minutes a day.”  Of course, that works out to 7,200 minutes in a 180-day school year, or 120 hours per year which is likely more religion students are exposed to than in a church in a year.

Then Thomas struck.  He recounted that the teachers often led the students in prayer, taught them tenets of the Catholic faith, and took them to church services.  He then asked Fisher if either teacher could do these things in a public school and Fisher responded there would be Establishment Clause issues and that would cross the line in a public school, but that did not shed any light on what makes someone a minister.  Thomas then called out the contradiction in the argument by saying it was “odd” that something that would violate the Constitution in a public school would not be enough to qualify for constitutional protection in a religious school.

Before one jumps to conclusions and views these actions by the schools as cold-hearted and “not very Christian,” some facts are in order.  In the age discrimination case was the fact Morissey-Berru failed to comply with certain requirements of a school revamping of their curriculum and requirements.  There were complaints from other teachers.  The school paid for training for her to become a catechist, which she failed to complete.  They offered her a part-time position where the new requirements would not apply.  In the other case (St. James School vs. Biel), Ms. Biel passed away a year ago (her husband kept the case alive).  However, she was rather new to the school and although receiving a generally favorable appraisal, the school noted areas for improvement which were apparently not acted upon.  The Court does not litigate these facts again, but they are important in determining a decision in the lower court which looks like they got it right and the Ninth Circuit got wrong.

How “great” a teacher is or is not is clearly NOT what these cases are about.  It is about government intrusion into religion and as Alito noted, propagation of faith through education is perhaps one of the most important functions of a religion.  Requirements that courts rely on titles, as the teacher’s counsel seemed to suggest was overriding, would harm minority religions the most. Apparently, the Ninth Circuit believes that the titles “Rabbi,” “Father,” or “Pastor” could be the only ministers just as they believe that one’s religious beliefs are protected one day a week behind closed doors.