Addressing the U.S. Supreme Court on Monday via telephone, two Catholic schools from California argued that when it comes to hiring and firing teachers who teach at religious schools, the federal government’s anti-discrimination laws should take a back seat to the First Amendment. 

Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel are two cases with very similar facts. In each, a teacher was terminated for poor performance. The teachers, however, sued their respective schools for, in one case, age discrimination, and in other, disability discrimination under federal anti-discrimination laws.

The schools argued that federal anti-discrimination laws do not apply to them because the Establishment Clause of the First Amendment prohibits the government from interfering with employment decisions regarding their religious leaders, including those who teach the faith to the next generation. This legal principle, developed over the years in the lower federal courts, is called the “ministerial exception” and was designed to implement, in a practical fashion, what the Establishment Clause stated in principle.

 In 2012, the Supreme Court followed the lead of the lower courts and adopted that principle for the first time in Hosanna-Tabor Evangelical Lutheran School and Church v. EEOC (Hosanna-Tabor), a case which involved another terminated teacher from a religious school in Michigan. In that case, the justices unanimously held the Michigan teacher was a “minister” and the school was therefore shielded from discrimination claims.

However, the 9th U.S. Circuit Court of Appeals in San Francisco ruled in 2018 and 2019 that the two teachers in Monday’s cases weren’t similar enough to the teacher in Hosanna-Tabor for the ministerial exception to apply, and therefore ruled against the two Catholic schools. The schools then appealed to the Supreme Court.

The questions from the justices on Monday to the lawyers for the parties primarily revolved around the issue of line-drawing. How should “minister” be defined so that it can easily be applied? What measuring test can be used for teachers in religious schools that will make for consistent results in future cases? Should it matter whether teachers are full or part-time, teach religious classes all day or perhaps just chemistry or math? What about gym teachers who pray before their students engage in sports or exercise classes? What other employees of a religious school or organization could be deemed “ministers?” How can we make the definitions clear for the next case?

Lawyers with the Becket Fund for Religious Liberty represent the two schools. Eric Rassbach, vice president and senior counsel for Becket argued the schools’ case to the justices. In a press release, he stated, “For any faith to continue, someone has to teach the faith to the next generation. And under our system of separation of church and state, the government cannot decide who carries out that crucial task. We are confident that the Court recognizes how important a role teachers play in the lives of their students, and will reaffirm its precedent that the government can’t control who teaches kids about God.”

The First Amendment guarantees us that the government will not excessively entangle itself with religion, which includes not interfering with a religious organization’s choices about who their ministers – including teachers – ought to be. The decision the Supreme Court comes to in these two cases will hopefully lead to clarity as to where the lines reasonably should be drawn in future cases.

Since these and several other pending Supreme Court cases from the justices’ April argument schedule were delayed into May because of the COVID-19 pandemic, it is unclear whether a decision can still be expected by the end of June, which is the typical date the court recesses for the summer, or whether decisions could be delayed into July or beyond. We’ll keep you informed as we learn more.


Supreme Court Accepts Two Major Cases on Hiring Rights of Faith-Based Schools