The Things That Are Caesar’s

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On May 11, the Supreme Court held oral argument in Our Lady of Guadalupe School v. Morrissey-Berru. The issue before the justices was how broadly to construe the word “minister” within the ministerial exception to anti-discrimination law required by the First Amendment. The 2012 case of Hosanna-Tabor v. EEOC held that the Free Exercise and Establishment Clauses bar employment discrimination suits by “ministers” against the religious group that hired them. In that case, the employee in question was a teacher in a religious school, and she met qualifications that placed her in the category of “called” teachers. She went to the Equal Employment Opportunity Commission (EEOC) to complain that her termination violated the Americans with Disabilities Act (ADA), a claim that the EEOC found meritorious and on the basis of which it accordingly brought a lawsuit against Hosanna-Tabor, an Evangelical Lutheran church and school. The Supreme Court’s ruling led to the dismissal of that lawsuit.

During the oral argument in Our Lady of Guadalupe, the justices asked some questions aimed at determining whether there is any meaningful limit on the sorts of employees to whom the ministerial exception might apply. It looked like the answer could be something close to no. In this column, I will explain where the doctrine appears to be headed and suggest that an exemption for criminal misconduct against “ministers” might fall within a logical application of existing doctrine. If I am right about that, then in the name of religious freedom and the separation of church and state, employers might have the power to do anything they like to “ministers” in their employ.

Hosanna Tabor

Prior to the Court’s decision in Hosanna Tabor, everyone understood the First Amendment to contain two religion clauses, each of which protected against a distinct government evil. The Free Exercise Clause, which says “Congress shall make no law prohibiting the free exercise thereof [of religion],” prohibited the government from singling out religion generally, any particular religion, or members of a religious group for mistreatment. Under Employment Div. v. Smith, the Clause did nothing to exempt religious activity from general laws that applied to both secular and religious practices but instead guarded religion against official discrimination. The Smith decision changed free exercise doctrine. Previously, the Sherbert v. Verner regime had required special accommodation for religion, i.e., more than equality, but Smith did away with this “better than equal” approach in 1990. Justice Scalia wrote for the majority in Smith, which included most of the Court’s conservatives, although today its no-special-benefits-for-religion rule would more likely code as liberal.

Meanwhile, the Establishment Clause, which says that “Congress shall make no law respecting an establishment of religion” aimed at government attempts to impose religion upon the populace in some form. The so-called “Lemon test,” which the Court announced in Lemon v. Kurtzman, required that a law or government action have a legitimate secular purpose, not have the primary effect of either advancing or inhibiting religion, and not result in an excessive entanglement of government and religion.

People who are secular or whose religion differs from that of the majority that makes up the electorate should be free of governmental attempts to proselytize or otherwise even subtly coerce participation in religious practice. A large government monument to the divinity of Jesus and the rightness of Christian scripture would violate the Establishment Clause, as would a refusal to allow public school students to opt out of participating in a religious event at school.

Alongside these doctrines lay the “ministerial exception,” an exclusion from employment discrimination laws that would otherwise apply to a religious employer’s authority to hire or fire a minister (or a rabbi, priest, or imam). For instance, if the governing board of a synagogue wanted to hire a rabbi, the person the board chose and the person it rejected could not successfully sue the congregation and allege race, sex, or religious discrimination. The board members would have complete freedom to choose the rabbi they thought would be best and to terminate the rabbi whose work failed to please them. They could discriminate on the basis of the rabbi’s race or sex, and the synagogue would be immune from liability.

The ministerial exception exists to protect the choice of religious leader from a searching analysis of motive. The government, on this theory, should not be inquiring about what qualifications a rabbi ought ideally to have and/or whether the particular rabbi had those qualifications. Such an inquiry would necessarily require the government to become entangled with what Jewish law does or does not require. Imagine a court finding that the rabbi was in fact ritually washing his hands and blessing the challah bread in the prescribed fashion and therefore should not have lost his job for getting these things wrong. It was to avoid this sort of entanglement that the Second Circuit held in Commack Self-Service Kosher Meats, Inc. v. Weiss that a law authorizing government officials to enforce the Orthodox Jewish version of kosher rules on vendors of meat violated the Establishment Clause. The state must not be involved in selecting which Jewish sect’s version of Judaism is authentically Jewish. Such questions are for religious individuals and groups to address on their own.

Then the Court decided Hosanna Tabor. In that case, the EEOC sued a religious employer on behalf of a teacher at the school who claimed that her employer terminated her because of her disability, in violation of the ADA. The Supreme Court held that “the ministerial exception is not limited to the head of a religious congregation.” The Court then set out some criteria for determining whether an employee qualified as a “minister.” Notably, Justice Thomas concurred and wrote that although the dismissed employee performed secular tasks, enough of her work was infused with the teaching of and leadership in religion to qualify her as a minister for purposes of the exception. To apply anti-discrimination laws to her termination would violate the Free Exercise and Establishment Clauses of the First Amendment.

New Territory

Applying a special exemption named for ministers (and other clergy) to anyone called to offer religious instruction, as Hosanna-Tabor did, was a big step. The current case before the Court, Our Lady of Guadalupe, concerns the size of the category of employees that could qualify as ministers for purposes of the exception. Justice Kagan at one point in the oral argument went through a list of positions and asked the attorney representing the defendant-petitioner which of the people holding those positions were and which were not “ministers.” The line that developed from the affirmative and negative responses to the justice’s questions seemed arbitrary and, ironically, as Justice Gorsuch pointed out, required secular courts to become entangled in questions about how essential particular work might be for a specific religion, thus arguably violating the Establishment Clause out of respect for the Establishment Clause.

One could give two alternative responses to Justice Gorsuch’s point. The first would be that the Court ought to either reconsider or greatly narrow the scope of the ministerial exception. Discussions about whether bus drivers and janitors might qualify as ministers betray a very wrong turn somewhere. The second alternative, the one that Justice Gorsuch appeared to like better, is that secular courts really must simply defer to religious employers’ statements about who is and who is not a “minister” under their religion. If the people running a church school think the bus driver is, then it follows that she is, and the church school can fire her or otherwise violate her rights under anti-discrimination laws with impunity. The government, on this view, ought to just stay out of the assessment.

The Criminal Law

After the oral argument, I found myself thinking something worse than the obvious inference that anti-discrimination law might have little force for religious employers. Though no one had said so, the Court could conceivably interpret the Establishment Clause as barring prosecutors from charging religious groups for crimes they commit against their “ministers.” I don’t know that there are enough votes for that position. Yet Justice Gorsuch, I would surmise, might already be there.

The reason for the ministerial exception, as the Court is moving toward thinking, is that people who play an important role, in guiding religious communities of adults or imparting religious teachings to children, should be subject to hiring, firing, and perhaps conditions of employment at the whim of their employer. A different approach would entangle the state in religion, even though no one is alleging that religion required its practitioners to fire a person because she had cancer or because she was elderly, some of the claims before the Court in Guadalupe. The prohibited motives are completely secular in nature. There is thus nothing civil-specific or anti-discrimination-law specific about the ministerial exception in all its grandeur. Its logic is about getting the government out of the business of regulating religious organizations and their dealings with the people who carry out religious functions. Think about what this could include.

When an employee of a religious institution who is designated a “minister” for these purposes blows the whistle on a child-molesting priest and the school fires the whistleblower as retaliation for being a snitch, what happens? Under the lawyers’ vision of the Establishment Clause and the ministerial exception, the fired teacher should have no recourse, not because she would be suing under an employment discrimination law, but because the government, by enforcing the law against the religious employer, becomes entangled in religion. If stopping people from firing a “minister” on the basis of race entangles the state in religion, then why doesn’t prosecuting people for assaulting a “minister” similarly entangle the state in religion? In the two cases, when the state interferes with the way in which the employer handles the minister, the state would seem equally thereby to violate the Establishment Clause. Either way, the defendant will offer testimony describing what ministers do in the workplace and how the employer treats them. If this scrutiny of an employer under anti-discrimination laws excessively involves the state in religious institutions, then so too would the scrutiny the government applies to an employer that tolerates an assault at work.

What makes Our Lady of Guadalupe special is not the existence of slippery slopes. Every case has some potential primrose paths. In this one, however, the debate is over whether to choose with eyes open to slide down that slope rather than whether to make a decision that could place us in danger of such a slide. Yet we may not realize where we have come. People can disagree over religious rights and the First Amendment, but it is troubling to accept the claim that a sizable part of the workforce should have no protection from discrimination (and perhaps from crime within the workplace) because granting them the same rights that secular employees enjoy would violate the Establishment Clause. On this Hosanna-Tabor logic, treating religious workplaces equally would violate the separation of church and state.

We live under a doctrine in which states can require all businesses to close on Sunday without violating either the Establishment Clause (though it mandates that Jews, Muslims, and atheists observe the Christian Sabbath) or the Free Exercise Clause (though it harms Saturday Sabbath observers who would like to work six days a week). In its core function, the Establishment Clause has thus been rather anemic at protecting private people from the government’s imposition of religious demands. And yet when the government wishes to protect employees from abusive behavior that has nothing to do with religion, our doctrine says it may not do so consistent with the selectively robust separation of church and state. I hope that at least five of the justices will see how wrong it would be to identify such government protection as religious coercion and entanglement rather than as a necessary remedy for the conduct of employers who treat their employees as fair game.