July 8, 2020 at 12:25 pm EDT | by Chris Johnson
Supreme Court makes anti-LGBTQ discrimination easier at religious schools
The U.S. Supreme Court has ruled for carve-outs under the law for religious schools. (Washington Blade file photo by Michael Key)

In a decision that undermines LGBTQ teachers at religious schools, the U.S. Supreme Court has affirmed for Catholic schools an expansive ministerial exemption in hiring practices under civil rights law.

In the 7-2 decision issued on Wednesday, U.S. Associate Justice Samuel Alito writes religious institutions have authority under the First Amendment to make employment decisions for teachers who educate in faith matters consistent with their religious beliefs — even if that would be considered unlawful discrimination at secular places of employment, such as anti-LGBTQ discrimination.

“The 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,” Alito writes. “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.”

Joining Alito in the decision were conservative justices John Roberts, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas as well as liberals Elena Kagan and Stephen Breyer. Dissenting from the opinion were Sonia Sotomayor and Ruth Bader Ginsburg.

The Supreme Court makes the decision in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel, which were brought by Catholic schools seeking an expanded ministerial exemption in the face of lawsuits from teachers suing the schools for employment discrimination.

Alito bases much of his ruling on the Supreme Court’s previous decision in 2012 in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, which determined religious schools have a ministerial exemption, but declined to identify its scope.

Although Alito concedes teachers at schools in the cases at hand weren’t given the title of minister, he concludes their cases “fall within the same rule that dictated our decision in Hosanna-Tabor.”

“We declined to adopt a ‘rigid formula’ in Hosanna-Tabor, and the lower courts have been applying the exception for many years without such a formula,” Alito writes. “Here, as in Hosanna-Tabor, it is sufficient to decide the cases before us. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”

But in her dissent, Sotomayor writes the majority opinion “skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role.”

“That is, the court’s apparent deference here threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring process,” Sotomayor continues. “That cannot be right. Although certain religious functions may be important to a church, a person’s performance of some of those functions does not mechanically trigger a categorical exemption from generally applicable anti-discrimination laws.”

Despite ruling for an expansive ministerial exemption under the First Amendment, Alito appears to word his decision carefully so that the immediate application is the cases at hand: Teachers at religious schools who are expected to lead in prayer and teach the faith.

Thomas writes in a concurring opinion the decision didn’t go far enough, arguing the Supreme Court should have given religious schools even more good-faith leeway in the hiring of non-ministerial positions.

“Although the functions recognized as ministerial by the Lutheran school in Hosanna-Tabor are similar to those considered ministerial by the Catholic schools here, such overlap will not necessarily exist with other religious organizations, particularly those ‘outside of the “mainstream,”‘” Thomas writes. “To avoid disadvantaging these minority faiths and interfering in “a religious group’s right to shape its own faith and mission,” courts should defer to a religious organization’s sincere determination that a position is ‘ministerial.'”

The Becket Fund for Religious Liberty filed a petition for review before the Supreme Court after federal appeals courts ruled in favor of the teachers and against the schools. The court accepted and heard arguments in May, when justices appeared to lean toward an expanded religious exemption.

Eric Rassbach, vice president and senior counsel at Becket, argued the case to the Supreme Court and said in a statement the decision is “a huge win for religious schools of all faith traditions.”

“The last thing government officials should do is decide who is authorized to teach Catholicism to Catholics or Judaism to Jews,” Rassbach said. “We are glad the court has resoundingly reaffirmed that churches and synagogues, not government, control who teaches kids about God.”

On its face, the decision has nothing to do with LGBTQ workers. The schools raised the ministerial exemption claims in response to litigation from teachers alleging wrongful termination for other reasons.

One teacher alleges she was terminated based on age discrimination, the other based on disability after having to request time off to treat cancer. The schools have maintained the termination was the result the teachers not fulfilling their ministerial roles at the schools.

But the decision has implications for workers at religious schools across the board, including LGBTQ teachers. After the Supreme Court just last month determined in the case of Bostock v. Clayton County anti-LGBTQ discrimination is prohibited in the workplace under Title VII of the Civil Rights of 1964, the latest ruling expands religious carve-outs under that law to enable discrimination.

Gay teachers could potentially be barred from suing a Catholic school if they’re terminated for entering into a same-sex marriage, or transgender teachers if they’re fired for undergoing a gender transition. The only saving grace may be the analysis in the ruling, which heavily draws on the demonstrated expectation teachers would engage in faith-based leadership for their jobs to fall under the ministerial exemption.

The scope of the ruling doesn’t stop with LGBTQ people. The breadth of the decision based on the First Amendment undercuts any and all laws and policies prohibiting discrimination on any basis, including race, gender, disability, HIV status, national origin. That includes federal laws like Civil Rights of 1964 as well as any state law or city ordinance prohibiting discrimination.

Shannon Minter, legal director for the National Center for Lesbian Rights, wrote in an email to the Blade the immediate impact of the decision is “limited,” but the analysis is “disturbingly broad and appears to open the door to sweeping new exemptions to anti-discrimination laws.”

“Depending on how the court applies this decision in future cases, it may enable religious employers to evade civil rights laws simply by claiming that virtually any employee is somehow fulfilling an important religious function,” Minter said. “Protecting religious liberty is important, but this decision goes too far and leaves far too many employees vulnerable to being fired or abused for reasons that have nothing to do with religious beliefs.”

Such discrimination may well happen, and perhaps even increase for LGBTQ teachers as result of the Supreme Court decision. Although corporations over the years have grown more accepting of LGBTQ people, anti-LGBTQ discrimination at religious institutions continues to be an ongoing issue.

Robyn Blumner, legal director for the pro-secular Center for Inquiry, said in a statement the Supreme Court decision is more expansive than it seems and turns legal jurisprudence for civil rights law on its head.

“This doctrine was intended to prevent the government from being able to dictate to churches who could serve as a preacher,” Blumner said. “Here, it’s being used as a wink-and-nod to religious schools so they can safely ignore anti-discrimination laws and leave their fired employees with no legal recourse. So the Supreme Court has yet again chosen to give religious groups the ultimate privilege: immunity from obeying the same laws as everyone else.”

An estimated 300,000 lay teachers at religious schools will now be subjected to having their non-discrimination removed as a result of the Supreme Court decision, according to an estimation in May from Jeffrey Fisher, an attorney with the Menlo Park, Calif.-based law firm O’Melveny & Myers LLP, who represented Catholic school teachers in the case.

Maggie Siddiqi, director of the faith and progressive policy initiative at the Center for American Progress, said in a statement the breadth of discrimination of the Supreme Court ruling would allow is considerable.

“Today’s ruling means religious institutions who wish to fire or refuse to hire school teachers or other staff based on age, race, sexual orientation or other discriminatory factors now have legal cover for doing so,” Siddiqi said. “This decision could strip away the right of millions of workers at religious institutions — from teachers to health care professionals — to sue employers if they experience employment discrimination. These critical legal rights should not be denied to workers.”

The Trump administration had argued before the Supreme Court in favor of the expanded religious exemption for Catholic schools. It remains to be seen how it will implement the decision, or if it will factor into the administration’s yet-to-be-anncouned plan for implementing the pro-LGBTQ ruling from last week.

The Justice Department didn’t immediately respond to the Blade’s request to comment on the ruling, nor did the White House immediately respond to the Blade’s request to comment on whether President Trump was briefed on the decision.

One agency that is likely affected is the U.S. Equal Employment Opportunity Commission, which is charged with enforcing employment civil rights law and even before the U.S. Supreme Court decision for LGBTQ rights had been accepting charges of anti-LGBTQ discrimination in the workforce.

Kimberly Smith-Brown, a spokesperson for the EEOC, said the ruling will inform the agency’s work, but a review is underway on the extent of the decision.

“The Supreme Court decision today provides additional clarity about the ministerial exception,” Smith-Brown said. “We are reviewing the decision to determine how it will impact EEOC’s enforcement of workplace civil rights laws.”

Because the reasoning of the opinion is based on the First Amendment, reversing the decision won’t be easy. Even passage of the Equality Act, legislation to bar anti-LGBTQ discrimination, won’t help because the legislation makes no attempt to alter the ministerial exemption under the Civil Rights Act, and even if it did, the U.S. Constitution trumps statutory law.

Instead, reversing the decision in the Our Lady cases would require judicial reconsideration, which would likely require changing the makeup of the Supreme Court, or passage of a U.S. constitutional amendment, which is an arduous task that requires a two-thirds majority vote in both chambers of Congress, then ratification from three-fourths of the states.

The Blade has placed a request with the Human Rights Campaign and the National Center for Transgender Equality, which had been among the chief advocates of the Equality Act, seeking comment on the way forward after the decision.

Jennifer Pizer, law and policy director at Lambda Legal, didn’t hold back in her assessment of the ruling, saying it has “opened a veritable Pandora’s Box that threatens the continued employment and financial security of thousands of teachers at religiously affiliated schools.”

“While there is no serious dispute that top authorities at churches and religious schools are free to select those who lead worship services or teach the tenets of their faith, it stretches the term ‘minister’ beyond recognition to also include those whose jobs or duties have little to do with propagation of the faith,” Pizer said. “Teachers of secular subjects are not clergy by any reasonable understanding of the word. They should not be deemed clergy simply to shield their employers from liability for wrongful workplace practices.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

Comments are closed
© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2020. All rights reserved.