The U.S. Supreme Court has agreed to weigh in on two cases from the 9th U.S. Circuit Court of Appeals regarding whether government can interfere in the employment decisions of religious schools. The cases are Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel.

The 9th Circuit ruled that the terminated teachers who brought the cases were not “ministers” as defined by the Supreme Court in Hosanna-Tabor Evangelical Lutheran School and Church v. EEOC (Hosanna-Tabor) and could therefore bring federal employment discrimination lawsuits against their schools. But the 9th Circuit may have misread the Supreme Court’s decision in Hosanna-Tabor, and decided the two recent cases incorrectly.  

At least that’s what the Becket Fund for Religious Liberty (Becket), the public interest law firm representing the two schools involved in the current appeal, is arguing to the Supreme Court.

In an online press statement, Becket said, “Most courts have ruled that ministerial employees are those employees who perform important religious functions, like instructing young children in the precepts of the Catholic faith. But in both Our Lady of Guadalupe School and St. James School, the Ninth rejected this widely accepted rule.”

The “ministerial exception” is a court-created short-hand term for the way the Establishment Clause of the First Amendment protects religious institutions against government interference in religious matters – in this case the prohibition of government interference in religious hiring decisions. Widely recognized in the lower federal courts for years, the Supreme Court officially recognized the legal principle in the Hosanna-Tabor case in 2012. The impact of that case means that in order to protect the rights of churches and religious organizations, such as schools, to determine who their religious leaders ought to be, many employment-related federal and state laws cannot be invoked to challenge hiring and firing decisions.

The practical difficulty has been where to draw the line on who falls within the “ministerial exception.” Church and school employees perform various duties, from the  sacred to the secular. Obviously, pastors of churches fit anyone’s reasonable interpretation of a “minister.” But the Supreme Court didn’t use that artificial term as a boundary for who performs ministerial work. In Hosanna-Tabor, Chief Justice John Roberts wrote for the court that,“The church must be free to choose those who will guide it on its way.” And in that case, the high court laid out various functions the teacher performed that could be considered “religious” in nature, including the teaching of religious doctrine. 

The 9th Circuit in its two cases, however, interpreted Hosanna-Tabor to mean that teaching religion was not enough to be considered “ministerial,”  but that a teacher must have more: a religious title; religious training; or a tax designation as a minister.

Why did the Supreme Court accept these two cases? The usual assumption whenever an appeal is accepted by the high court is that a majority of justices feel that the lower federal courts got it wrong. And since Hosanna-Tabor was a unanimous decision, it looks even more likely that the justices want to take the 9th Circuit to the woodshed on their recent decisions.

The other possibility is that the justices think that it’s time and these cases provide the opportunity to clarify further how the “ministerial exception” applies to teachers at religious schools. Clarification could result in fewer of these such cases being decided incorrectly.

We’ll keep you up to date as these two important religious freedom cases progress to oral argument and then to a final decision next year.


Photo from Becket Law