High Court Seems Divided on Shield for Religious Schools

discrimination lawsuits. The justices appeared divided along ideological lines. Here are Justices Sonya Soto, Mayor and Neil Gorst's you're asking for an exception to law that's broader than the ministerial exception generally, and broader than is necessary to protect the church. Why couldn't we just simply say that sincerely held religious belief about who is a minister should control just like

we do everywhere else in the First Amendment. And joining me is Richard Garnett, a professor at Notre Dame Law School. Rick explain what the ministerial exception is and when the Supreme Court recognized it. Sure, so, lower courts went first

on this issue. Lower courts recognized what they called a ministrail exception about forty years ago, and the idea here was that for certain classes of employees, employment discrimination lawsuits couldn't go forward because if they did, it would get courts involved and you know, what they thought was kind of the tricky business of having to interfere with religious decisions between ministers and religious institutions. And so this doctrine

would have been around for a long time. And the reason the Supreme Court never addressed it was because all the lower courts agreed that there was such a doctrine, and there were there were disputes about details in particular cases, but the basic idea that if the separation of church and State needs anything, it means that the government can't tell churches who hires their ministers. That there was a

lot of consensus on that point. Then the Supreme Court weighed in in two thousand and twelve, they finally did take a case, and they were ruled unanimously that yes, there is a ministerial exception that the First Amendment does

not permit some employment discrimination lawsuits to go forward. So you know, it would be illegal for Walmart to refuse to hire a woman, but the government doesn't have a power to tell an Orthodox Jewish congregation that it has to hire a woman to be its rabbi, and so on. The disagreement has been not so much about the principle of the thing I mean, I think everybody has kind of an instinct. The government can't make the Catholic Church

ordained women priests. But it's more about the shape of the doctrine, right who count has a religious institution, who counts as a ministerial employee. And there's been a lot of cases that have been pretty easy. If a church

fires its pastor, that's pretty obviously a minister. So what was the main issue in these cases which involved teachers and Catholic schools who were not ordained ministers, who had a mix of job duties religious and secular, And so the issue was how do you decide who counts as a ministerial employee? And in these two cases, the lower courts had taken a narrower review than most courts had.

Most courts had taken a pretty deferential approach, you know, not wanting to kind of get involved in wading into the weeds about you know, counting up how many minute the teachers is doing religious subjects or what have you. And what the justices were wrestling with was not whether there should be a ministry or exception. I think all the justices agreed there should be one. The question they were wrestling with those kind of how far should it reach?

Should courts be kind of second guessing religious institutions designations of their own ministers they leave up to them, and

so on? And how did the justices way the competing considerations the justices, you know, we're asking lawyers on both sides, well, you know, what about this kind of case, or you know what if you have a teacher who does religion for two hours a day but is also a gym coach, or what if you have somebody who's a they're a Lutheran person at a Catholic school who says grace before meals.

You know, I think for one side of the case, they wanted to show these hypothecles like, look, this thing could sweep really broadly, and would that undermine the importance of antidiscrimination law. The other side was trying to make the point. I think that, look, we don't want secular courts getting in the business of making these kind of fine grain distinctions based on how many minutes a day person might spend teaching math versus teaching catechisess and theology.

And you know, at a lot of schools the math teacher does play an important religious role and you can't make it just depend on the label. The arguments at the end of the day were really about the difficulty of line drawing. There was a lot of consensus at the level of high principle right religious freedom is important. Religious institutions should get to govern themselves and decides who their ministers are. We don't want secular courts involved in

these decisions. There seemed to be a fair bit of agreement on those points, but the argument was more about where do you draw the line? So Rick, what's your sense of how the justices might line up in the case.

My read of the situation was that maybe it won't be unanimous this time, but that you'll still have a majority of the justices saying, look, this doctrine is important, and it really should prevent courts from getting involved in um sort of second guessing the employment decisions that religious institutions make about people who they regard as having an important ministerial or religious role. Justice course, it's said that we don't second guess these sincerely held religious beliefs in

First Amendment cases? Why should we hear so? Do you think that enough justice will come down and say we shouldn't second guesses at all. Whoever religious institution says is a minister, that's a minister. Well, uh, he used. He was making an analogy to what we do in free exercise cases around the sincerely held belief issue, And that comes up in RIFRA cases obviously, and it comes up

in free exercise cases. UM courts do inquire in those kind of cases into whether a claim about religion is sincere. I mean, if a court thinks that the that the party is typically not telling the truth about their religious beliefs, then they don't have to give credence to that. But I think what justice course it was alluding to was the idea that, look, we take a pretty we take a pretty light touch when it comes to um second guessing somebody who tells us what their religious beliefs are.

And similarly, it makes sense in this context to take a pretty light touch to the question of if a religious community tells us and tells the world that they regard a particular position as important to the religious mission, it's not really our job to second guess that. Again, if we're going to take this kind of church state separation idea seriously, I mean, and again looking in the background, and I think this is something that Justice Kagan was

particularly concerned with. Justice Thomas also, there's a there's a worry about the potential for discrimination against kind of unfamiliar religions, or minority religions, or just small institutions. Um. You know, in these cases involved kind of Catholic parochial schools, and

everybody is kind of familiar with that set up. But as some of the justices pointed out, there's a whole lot of religious institutions in this country where people wear a a lot of different hats and where the roles that they're asked to play might be unfamiliar to your typical again kind of um, white Anglo Saxon Protestant jurists, And so they don't want to come up with doctrines that run the risk that unfamiliar religions will not get the same protection as religions that are more kind of

structured and formal and familiar. Justice Ruth Bader Ginsburg did she seem to be the justice who was most most on the side of the teachers. Yeah, I think jeffics Ginsburg's current ser and again again, Justice Ginsburg joined the opinion eight years ago which endorsed a pretty robust version

of the ministry exception. But I think what her concern was was that, you know, because the ministerial exception applies even in cases where the employer's reasons for firing the person are not explicitly religious, she was worried about the exemption being too broad. Now, again, my view would be that that was what Josanna Tabor said eight years ago,

and she signed onto that. But I think her questions indicated a concern that you that the ministry exception might have the effect, of um, of blocking a lot of employment discrimination lawsuits in cases that, at least in her view, don't have a lot to do with actual religious teaching and instruction. Do you see them drawing a line? What do you see them doing? No? I don't. I just really just don't think there's a line to be drawn.

I mean, they declined to draw one in the Posanna Tabor case eight years ago, and I don't think they'll draw one now. Um, It'll be it's more a question of kind of the um, the vibe of the approach, And I think the real what's really in play is just how much difference we tell lower courts that they're supposed to be extending to the religious employers, and the subsite is I mean, it's you know, the people who

want a narrower version of the ministry exception. They want to put out certain markers, you know, like you you have to have a certain title, you have to have a certain kind of training, or you have to have a certain kind of certification, or you have to spend a certain amount of time teaching religious subjects. And I just don't think the court is going to want to do that because with respect to any of those bright lines,

you could think of cases that wouldn't satisfy them. So I suspect we're going to end up, frankly, probably where we were after Josiana Tabor, which is just that there's a lot of factors to be considered. We don't want to have a one size fits all things because we have religious diversity in this country, but that the basic principle is one that respects both free exercise values that as we think religious communit these have a free exercise

of religion, right to pick their own ministers. And also this kind of church state separation comes around where we really don't want um employment discrimination lawsuits to become a a mechanism where secular courts are kind of digging into um internal religious decisions about who should be a minister and who won't. So it'll be, you know, for for a certain kind of lawyer. Frankly, I'm offer in this way myself, who likes kind of bright line rules. I

suspect we won't get one here. Um. I think instead what we'll get as kind of a a general principle that's important, right, respecting religious autonomy, and then we'll get kind of a pretty deferential approach to religious employers. But like Justice course has said, and I think you're right to pick up on that, there's always it's always possible to ask about kind of the sincerity of a claim that it puts a sular employee is a is a minister.

So let me ask you this then, Rick, looking at this from another side, does that mean that if someone fits the ministerial exception, let's just say you're a l a teacher teaches religion, does that mean that the school can then fire her because she has cancer or because they don't like the way she dresses, That they can fire her for any reason and not be held to account. Right, So, if the ministerial exception applies. It's it's absolutely. Um Uh.

This is separate from there's a separate rule in the Title seven and employment discrimination laws which give kind of broad protections to religious institutions to hire and two favorite co religionists. Right, so you're a Catholic institution is allowed to prefer Catholic but that just kind of that's already at rule. The minister exception is separate. The minister exception does not care about the reasons of the employment decision.

It's attached to the position and the relationship between that position and the religious institution. And this is again I think this is one of the things that had Justice Ginsburg hesitants and sort of nervous about this is that when the ministry exception applies, it's absolute. And so it does mean that sometimes the ministry exception will protect religious institutions that behave badly. Um. There's there's there's no way around that, right. It's kind of like the freedom of

speech protects people who say some really offensive things. Sometimes. Um, the minister exception can be misused in some circumstances by religious institutions two to shield employment decisions that are that are bad and that's just a fact of life. And I don't I don't think, I don't think advocates for the ministry of exception would would deny that. It's just that's an inevitable result of the fact that we have

a principle of church autonomy and church state separation. And of course then it just raises the question, well, religious communities and those who are parts of religious institutions um, need to be asking themselves to be outside the context of litigation. Um, how well there they're treating their their members, their employees, their leaders and so on. And it raises all kinds of questions about how you structure employment contracts and um, employee guide books and handbooks and all that

kind of thing. But your question is an important one because nobody should nobody should pretend otherwise. The ministry exception does mean that, when it applies, religious institutions can fire some people without having to give an account of that in the secular court. So now, how do you see that the justices lining up, Well, all nine of the justices believe that there is a ministry or exception um, and so at a high level of reality, they will

all agree um with respect to this particular case. I'm not sure. If I had to guess, I would I would have been Again, it's so risky, you know, making these kind of predictions on the basis of argument. But I thought there was enough skepticism on the part of Justices Ginsburg and so do my or that maybe they

would side with these particular teachers in this particular case. Um, But I would I would think that even in this case, um, since you know, this wasn't the case involving like a really marginal employee like sometimes the cases you hear about our you know, what about the janitor or the school bus driver or what have you. These are still teachers who were teaching religion sometimes. And so I I guess I expect that you'll see at least seven justices siding

with the religious school. Thanks for being on Bloomberg Law. Rick, That's Richard Garnett, a professor at Notre Dame Law School. And that's it for the sedition of Bloomberg Law. Remember you can always get the latest legal news by going to our Bloomberg Law podcast. You can find them on iTunes, SoundCloud, or Bloomberg dot com Slash podcast Slash Law. I'm June Grosso, Thanks so much for listening, and remember to tune to The Bloomberg Law Show weeknights at ten pm Eastern, right

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