They Are Still Teachers


I listened, live, Monday to the Supreme Court’s oral argument in the combined cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, two cases in which Catholic schools appealed the Ninth Circuit’s ruling that the late Kristen Biel and Agnes Morrissey-Berru were teachers, not ministers. Because the two women were teachers, not ministers, their lawsuits for being fired for disability discrimination for breast cancer and age discrimination, respectively, could proceed. The ministerial exception is an affirmative defense that allows lawsuits involving ministers to be dismissed with no trial. For the women, it was good that the Ninth Circuit called them teachers.

I wrote a brief in the case, arguing that the two women were clearly teachers, and so their lawsuits could continue. In the oral argument, the Solicitor General joined the case on the side of the Catholic schools’ lawyer, with both of them arguing for a broad “ministerial exception” that would make most employees of religious organizations ministers. Ministers cannot sue their employers in court. Stanford law professor Jeffrey Fisher argued for the teacher-employees.


It is much easier right now to recommend Court-watching to friends, because the cases are presented live on C-SPAN, with everyone participating by telephone, and all of the justices presenting questions in order of seniority. A non-lawyer friend who watched the argument asked me, why do the religious employers want a much broader ministerial exception, that keeps even more cases out of court?

My answer is simple, but repetitive. First, religious organizations repeatedly argued that their decisions protecting ministerial child abusers from any liability were completely shielded from the law by the First Amendment. Second, just last week, the Court heard the federal government’s defense, in the Pennsylvania case, of a much broader exemption for religious and moral employers from the duty to provide contraceptive insurance to employees. Third, today the church and the government defended a wide exemption that would dismiss from the courts most employment discrimination cases against religious organizations.

In all these situations, the religious argument is that religious freedom means religions do not have to follow the law. That argument gradually failed in the child abuse cases, where courts are now hearing claims that they used to reject under the First Amendment. But in the contraception and ministerial exception cases, the goal has consistently been to make religious organizations free of the law. The Trump administration has been expanding and supporting the expansion of those exemptions.

Such broad religious freedom might sound like a good idea to many of you, until you think of all the harm it does to the individual employees, who are also usually religious. Individuals get abused by their fellow church members, and the church’s government then covers up the abuse. Individuals do not get the contraceptive insurance that the law of the land provides to everyone. As a result of these broadly-interpreted religious freedoms, individuals get fired from their jobs for disabilities, age, race, and more, but cannot get into court to collect their damages.

Religious freedom is better protected by requiring religious organizations to protect the civil rights of everyone, especially their employees, and not to practice disability or age discrimination, which the churches do not endorse for religious reasons.

Good Questions for the Teachers’ Side

Some of the questions at Monday’s argument brought home the dangers of exempting religion from the employment discrimination laws.

Justice Sotomayor told the schools’ lawyer, Mr. Rassbach, that he was asking for an exception broader than the ministerial exception. Sotomayor pointed out that one employee was fired for her medical condition (cancer) and the other for her age, neither of which is a religious reason. She gave a list of antidiscrimination laws, as well as breach of contract, that could be threatened by a broad ministerial exemption.

Justice Kagan efficiently went down a list of numerous short hypotheticals, asking Mr. Rassbach who was a minister. On one question, he answered that a nurse who prays with her patients is a minister.

Justice Ginsburg asked questions that pointed out the dangers of the exception. If these two teachers had been fired for reporting an account of a student who was sexually harassed by a priest, would the case be banned? What if (as the news had reported) their school principal was stealing from the school and the teachers were fired for reporting it? Morgan Ratner, from the Solicitor General’s office, suggested that the Court was not really faced with such issues in this case, and that under the Court’s precedent, Hosanna-Tabor, the answer could be evaluated later. There was no need to conclude on it now, the federal government argued.

Justice Ginsburg later told Mr. Fisher that he did not seem to care for something she found “very disturbing,” namely that an employee could be fired or refuse to be hired for a reason that has nothing to do with religion, like taking care of chemotherapy. Fisher said he agreed with her on that point, and did not want to give the exemption to religions that were not acting for religious reasons. He opposed what the lawyers called “absolute categorical immunity,” namely the right for a church to hire or fire people for any reason they wanted to use.

The Teachers’ Lawyer

Mr. Fisher had many strong moments for his clients, the teachers. He repeatedly referred to footnote one of his red brief, which listed all the cases in which lay teachers had been recognized as teachers, not ministers, and so their employment lawsuits could proceed. He emphasized that the federal government had until recently supported the idea that lay teachers were teachers, not ministers. At the very beginning of his argument, he noted that some 300,000 lay teachers could lose their legal rights if the Court recognized the exemption in this case. He referred to the numerous lay teachers several times, and then added that some 100-200,000 employees of religious universities and colleges could also have their legal rights at risk if the Court used the schools’ and the government’s broad exemption tests. He also picked up Mr. Rassbach’s point about the nurses, worrying that under the Petitioners’ standard, many nurses could be transformed into ministers.

At one point, Fisher noted that millions of people could be affected if the Court deferred to the schools’ and the government’s perspective. And in his last minute of argument, he said it “would blow a hole in our nation’s civil rights laws and our employment laws in general, to say that categorical immunity applies and so schools can pay people different amounts, use race, sex, other private characteristics even when they have nothing to do with religion and the religious values at stake.“

Anything Missing?

In legal practice, the ministerial exception is an affirmative defense that keeps the facts of a case from ever going to a judge or a jury. That effect was obvious today. We heard a little bit about Kristen Biel, who died from her cancer on June 7, 2019, and Agnes Morrisey-Berru, who alleged she was fired because of age discrimination. But much more often we heard about religion teachers and ministers and other religions in general, instead of the specific facts of these two women’s cases. Looking at the facts, the Ninth Circuit had correctly ruled that they were lay teachers who could go to court, not ministers. As a general rule, most of the ministerial cases could be decided in courts based on their facts.

Other Court listeners told me what they were wondering. They know that religious organizations have fired many LGBTQI employees. They wondered if Fisher had allowed that practice to religious employers who say they are religiously opposed to gay rights because of his argument that religions can make decisions based on religious grounds. That would be a sad result of the case indeed, and devastating to the careers of thousands of Americans teaching our children and caring for our sick in religious organizations across the country.

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