Several weeks ago in the weekly edition of Issues, I wrote a critique of the Bostock Supreme Court decision, which extended Title VII of the Civil Rights Act of 1964 to include sexual orientation and transgender status as worthy of federal protection against discrimination.  I still regard this important decision as a potential threat to religious liberty in America.  However, in early July, in two 7-2 decisions, the Supreme Court upheld “conscience protections for nuns and parochial schools,” producing a level of encouragement that the Court, as now structured, seeks to protect religious liberty:

• The issue in the first opinion, Our Lady of Guadalupe School v. Morissey-Berru, was whether two teachers could sue for discrimination after Catholic schools did not renew their contracts.  This case was a test of an earlier Court decision, Hosanna-Tabor (2012) in which the Court declared that a teacher could not sue her Lutheran school.  She was covered by a “ministerial exception,” based on the First Amendment right of churches to be free of government meddling.  In the Guadalupe case, although the two teachers at Catholic elementary schools prayed in class, instructed students in doctrine, and took them to Mass, they had little religious training and no special titles.  John Melcon, judicial law clerk at the United States Court of Appeals for the Fifth Circuit, summarizes, “The teachers in Wednesday’s case, Agnes Morrissey-Berru and Kristen Biel, argued for a narrow application of the ‘ministerial exception’ from the Hosanna-Tabor decision. Instead, the Supreme Court embraced a broad, flexible view of the ministerial exception, holding that courts should ‘take all relevant circumstances into account’ in determining whether a worker carries out the mission of a religious employer. The court explained that the ministerial exception may even apply to employees who do not share their employer’s religious beliefs.  Focusing on the religious education context, the court emphasized the responsibility of teachers at religious schools to impart the faith to their students—something Morrissey-Berru and Biel were clearly charged with doing. That function, the court recognized, is at the ‘core’ of a religious school’s mission.”  Indeed, Justice Alito wrote that the “ministerial exception” is not subject to a “rigid formula.”  The teachers here clearly “performed vital religious duties,” and their schools “expressly saw them as playing a vital part in carrying out the mission of the church.” In other words, religious schools may choose those who teach religions classes without governmental interference, even in the face of discrimination claims.  It guarantees the autonomy of religious teaching from government control and affirms that the Constitution protects the freedom of religious organizations to hire and fire employees who play a vital role in fulfilling their religious mission.
• The issue in the second opinion, Little Sisters of the Poor v. Pennsylvania, involved employers who object to providing contraceptives under a mandate from the Affordable Care Act of 2010 (aka Obamacare).  Under the Trump Administration, regulations were authorized expanding exemptions for employers with good-faith objections.  Pennsylvania and New Jersey sued, declaring an “abuse of discretion.”  Justice Thomas wrote the opinion, arguing that the executive branch has the authority “to identify and create exemptions.”  This was a victory, but a very narrow one.  The case moves back to the lower courts, where the battle will continue.

John Melcon offers three important takeaways from these two Supreme Court decisions:

1. The Guadalupe decision “explicitly reaffirms longstanding First Amendment protections for religious organizations, tracing the need for these protections back to England’s Acts of Uniformity in the 16th century. The court explained that while religious organizations are not immune from secular laws, the First Amendment protects their autonomy when it comes to ‘internal management decisions that are essential to the institution’s central mission.’”
2. The decision also “serves as something of a counterweight to last month’s Bostock case, which held that Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity.  In Bostock, the court acknowledged concerns about the interplay between religious liberty and Title VII’s newfound prohibition on LGBT discrimination. Writing for the majority, Justice Neal Gorsuch said he was ‘deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution,’ but he made no effort to explain how this promise might protect religious organizations holding traditional views about sexual orientation and gender identity.  Wednesday’s decision [8 July 2020] is a step in that direction. It appears to confirm that the First Amendment immunizes religious organizations from lawsuits brought by workers alleging LGBT discrimination, so long as those workers fall within the ministerial exception and play a vital part in carrying out the religious mission of the organization. Moreover, because the ministerial exception arises from the Constitution, rather than a statute, it applies with equal force to state and local laws prohibiting LGBT discrimination.”
3. Our Lady of Guadalupe provides practical guidance about what steps religious organizations should take to maximize the protection afforded by the ministerial exception.  “Dozens of Christian organizations, not to mention other religious groups, filed friend-of-the-court briefs urging the Supreme Court to defer to an organization’s good-faith claims that certain employees’ positions are ‘ministerial.’  While two members of the Court— Gorsuch and Clarence Thomas—defended that view in a concurring opinion, the majority stopped short of holding that an organization’s good-faith classification is all that’s necessary for a ministerial exception. Even so, the majority placed considerable weight on the organization’s perspective, noting that ‘a religious institution’s explanation of the role of [its] employees in the life of the religion in question is important.’  In the case, the court relied on the schools’ mission statements, faculty handbooks, and codes of conduct. These documents, the court held, provided abundant evidence that religious instruction and spiritual formation ‘lay at the core of the mission of the schools.’ The court also cited the employment contracts signed by the teachers, which explained ‘in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. . .  The takeaway is clear: religious organizations of all types must define and articulate their core mission, then carefully and thoughtfully link employee responsibilities and duties—the things an employee does—to the mission. Employees’ performance evaluations should be clearly connected to the mission and the organization should be able to show how the employees play a vital role in carrying out its religious goals . . . The exception should be deployed only where necessary to protect an organization’s ability to carry out its mission. Among other things, that means religious organizations should develop—and follow—comprehensive policies and procedures for resolving disputes outside the courts, either internally or with the help of religious authorities or mechanisms for dispute resolution.”

“The dissenting opinion in Our Lady of Guadalupe offers lessons for religious organizations, too. The dissenting justices warned that religious organizations will ‘discriminate widely and with impunity for reasons wholly divorced from religious beliefs.’ To avoid acting out the worst fears of the dissenting justices and the broader secular society, religious organizations should resist the temptation to weaponize the ministerial exception for their culture war battles. The ministerial exception is not a license to mistreat employees. Religious organizations must act in good faith when identifying employees’ duties and roles and their relationship to the organization’s mission.”

When we combine the Bostock decision with these two Court decisions, we observe that the fight to protect religious liberty is ongoing and requires vigilance, consistency and diligence.  Christians live in a pluralistic society and religious organizations (e.g., churches, schools, parachurch ministries) must be discerning and wise in how they carry out their missions, how they hire and fire employees and that they operate within the laws (both statutes and Court decisions).  Preserving religious liberty will remain a continuous struggle.

See John Melcon, “What the Ministerial Exception Will Mean for Religious Employers,” www.christianitytoday.com (9 July 2020); Wall Street Journal editorial (9 July 2020); and Michael W. McConnell in the New York Times (10 July 2020).