In July 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court “made it easier for religiously affiliated employers to discriminate” by concluding, 7-2, that two Catholic school teachers were ministers, not teachers. That ruling opened the door for thousands of Catholic school teachers to lose their day in court under all the antidiscrimination laws of the United States.
Post Morrissey-Berru, two circuit courts have recently ruled in favor of the employee. The cases teach us that occasionally ministers have a chance at winning their antidiscrimination lawsuits. Their chances, however, are very limited.
The Fifth Circuit
The Fifth Circuit’s case involved Will McRaney, the Executive Director of the General Mission Board of the Baptist Convention for Maryland/Delaware (BCMD). The North American Mission Board of the Southern Baptist Convention (NAMB) was never McRaney’s employer. However, he interacted with NAMB over a dispute about his church’s refusal to adopt a strategic partnership agreement (SPA) agreed to by BCMD and NAMB without his involvement. As the court explained the lawsuit:
McRaney alleges that NAMB intentionally made false statements about him to BCMD that resulted in his termination. Specifically, he alleges that NAMB falsely told BCMD that he refused to meet with Dr. Kevin Ezell, president of NAMB, to discuss a new SPA. He also alleges that NAMB intentionally got him uninvited to speak at the mission symposium and posted his picture at its headquarters to “communicate that [McRaney] was not to be trusted and [was] public enemy #1 of NAMB.”
The Fifth Circuit reversed the district court’s ruling that the lawsuit was blocked by the ecclesiastical abstention doctrine, which does not allow courts to resolve purely ecclesiastical questions. It was premature, the circuit ruled, for the district court to figure out whether ecclesiastical questions were involved or not. Because the lawsuit at this stage could be decided according to neutral principles of law in a civil, not religious, dispute, the case could proceed. Only later, not this early, could the court figure out if ecclesiastical issues were really involved.
The ecclesiastical rule, like the ministerial exception, is another way to dismiss lawsuits and can be hard on plaintiffs. But McRaney is a good reminder that all disputes with religious organizations do not have to be ecclesiastical, even when the defendants say they are. As the Supreme Court has said, everyone has to obey neutral laws of general applicability.
In the Fifth Circuit, the ministerial exception was present only in a footnote, which observed that NAMB had moved for dismissal of McRaney’s lawsuit under the ministerial exception. The district court denied that motion, “finding that the ministerial exception only applies to disputes between employees and employers, not employees and third parties” (emphasis added). No appeal of the ministerial ruling was before the Fifth Circuit.
The case is a good reminder that non-employees are not ministers. It also reminds us, however, that the ecclesiastical abstention rule is always a possibility to gut lawsuits against religious-organization defendants.
The Seventh Circuit
Post Morrissey-Berru, the Seventh Circuit judges voted 2-1 in another case about a minister. The majority allowed the minister’s case to stay in court, even though the plaintiff, Sandor Demkovich, is really a minister! Demkovich was a music director at a Catholic church, St. Andrew the Apostle Parish, in Calumet City, Illinois. He filed a Title VII and Americans with Disabilities Act claim of hostile environment because he had been harassed by his employer about his same-sex marriage, his weight, and other medical issues. We learned recently that Title VII protects against sexual orientation discrimination.
The judges disagreed about the rule in ministerial exception cases and the proper interpretation of one of their own ministerial exception cases, Alicea–Hernandez v. Catholic Bishop of Chicago. Judge Hamilton, joined by Judge Rovner, wrote the court’s opinion. Judge Flaum dissented.
The question in the case’s interlocutory appeal was:
should the constitutional exemption be extended to categorically bar all hostile environment discrimination claims by ministerial employees, even where there is no challenge to tangible employment actions like hiring and firing?
Judge Hamilton was explicit in answering that question: “Our answer is no” (emphasis added). Thus Demkovich’s case of hostile environment discrimination could proceed because it did not involve hiring or firing.
Hamilton observed that the case involved a “particularly sensitive” problem, namely the conflict between freedom of religion and freedom from invidious discrimination. He repeatedly referred to the importance of religious freedom. Yet, unlike some other ministerial exception cases, this opinion said a lot about the freedom from invidious discrimination, which the antidiscrimination laws are expected to protect.
Hamilton explained that the Supreme Court’s first ministerial exception case, Hosanna-Tabor, allows plaintiffs to bring contract and torts lawsuits. For that reason, they can also bring hostile environmental discrimination cases, which are “tortious in nature,” as long as the case is not about hiring or firing. Hamilton also thought it was significant that religious organizations can be sued by non-ministerial employees, so allowing this lawsuit to proceed would not ruin religious freedom. Instead, it would keep the proper balance between religious freedom and antidiscrimination that the laws are supposed to protect.
Hamilton also concluded that the Seventh Circuit had not decided Demkovich’s question in Alicea–Hernandez v. Catholic Bishop of Chicago. Alicea-Hernandez ruled in 2003, as the Supreme Court later did in Hosanna-Tabor in 2012, that “religious organizations may hire or fire ministerial employees for any reason, religious or secular.” In Hamilton’s view, Alicea-Hernandez did not raise Demkovich’s distinction between “tangible employment actions and hostile environments.” Tangible employment actions include “hiring, firing, promoting, deciding compensation, job assignments, and the like,” and are barred by the First Amendment. But the First Amendment does not grant employers the right to subject their employees to the “horrific abuse” of hostile work environment.
In the majority’s view, the law does not permit employers to control their employees through acts of a hostile work environment. “The notion that such harassment is necessary to control or supervise an employee is, under employment discrimination law, an oxymoron.” The opinion’s language was strong:
the First Amendment does not require that supervisors and co-workers of ministerial employees have the right, for example, to leave nooses at the desk of a Black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols, or to subject a teacher to pervasive and unwelcome sexual attention, or to subject another to intimidating harassment based on national origin. Such harassment is not constitutionally necessary to “control” ministerial employees.
The majority spoke favorably of two Ninth Circuit opinions that allowed ministers to sue for hostile environments, but criticized a Tenth Circuit case that did not.
The dissent was much shorter, ruling that the circuit court had already rejected Demkovich’s lawsuit. In Alicea-Hernandez, Judge Flaum wrote, the court ruled that the “ministerial exception bars employment discrimination claims brought by ministers ‘without regard to the type of claims being brought.’” Thus all Demkovich’s claims should be dismissed.
If they proceeded, there would be long-term harm to religious freedom.
Other cases not yet in the circuits or highest state appeals courts confirm that courts and judges remain divided on these issues.
Alessendrinia Menard, who was director of music ministries at St. Mary’s Parish in Massachusetts, filed a harassment suit for gender, retaliation, age discrimination, and a hostile work environment. A Massachusetts Court of Appeals dismissed it under the ministerial exception. Quoting Morrissey-Berru’s reasoning, “What matters, at bottom, is what an employee does,” the court ruled that like other musical ministerial exception cases, Menard was clearly a minister.
In a footnote, the court mentioned Menard’s argument that a harassment suit would not be barred by the exception. The court might have considered the distinctions so central to Demkovich. But instead it said “any allegations of harassment included in Menard’s complaint are so threadbare that they are dismissible for failing to state a claim on which relief could be granted.” Too threadbare, even on a motion to dismiss. This minister lost.
Samano was only indirectly a ministerial exception case, and a footnote said that Morrissey-Berru did not have any impact on the case’s result. Still, the lead opinion’s perception of Samano as a minister led to Samano’s loss of a jury verdict in her favor.
Mary Samano was a yoga teacher, and did other marketing and website management for her employer. She was also an ordained swami and could conduct funerals, marriages, and baptisms. The trial court gave her a verdict, ruling that the Temple of Kriya owed her overtime wages for her work.
The Appellate Court of Illinois reversed. One legal question was whether Samano could collect wages under Illinois’ Minimum Wage Law, which does not allow payment to “a member of a religious corporation or organization.” Because Illinois did not have much guiding law on the question of her religious status under the wage law, the court looked to federal law, including the ministerial exception cases, for guidance. The Supreme Court cases, as well as circuit cases that ruled ministers were not protected by the Federal Labor Standard Act (FLSA), supported the opinion by Presiding Justice Gordon, who overturned the trial court’s verdict for the plaintiff. Those cases showed that Samano was a minister, and that translated into a loss under the Minimum Wage Law.
Justice Gordon also relied on Alicea-Hernandez, the Seventh Circuit case analyzed in Demkovich. He noted that Samano’s work was “in large part similar” to Alicea-Hernandez’s work. Relying on the ministerial exception, Gordon ruled Samano was not an employee under the Minimum Wage law. He did not analyze Alicea-Hernandez in depth as Judge Hamilton had.
In a special concurrence, however, Justice Delort argued that despite Samano’s status as an ordained swami, in her work she had “primarily—if not overwhelmingly—engaged in activities that were widely performed by laypersons in nonreligious environments,” while not as frequently performing ministerial acts. Therefore, he would not reverse the trial court on the Minimum Wage Act, because there was not enough ministerial evidence to overturn the trial court’s conclusion.
It was a concurrence. Samano lost anyway. Delort reasoned that she was a volunteer who could not get pay, concluding “the circuit court’s determination that Samano did not fall under the volunteer exemption in the Minimum Wage Law was against the manifest weight of the evidence,” and so should be overruled.
Ministers continue to lose under the courts’ ministerial exception cases. But occasionally they win. Perhaps because they are not employees, as in McRaney. Or because a court carefully distinguishes the lawsuits they filed, as in Demkovich.
We wait to see what happens next!