Our Lady of Guadalupe School v. Morrissey-Berru
Our Lady of Guadalupe School v. Morrissey-Berru
Opinion
*2055
These cases require us to decide whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith. The First Amendment protects the right of religious institutions "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America
,
In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich's. Although these teachers were not given the title of "minister" and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor . The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.
*2056 I
A
1
The first of the two cases we now decide involves Agnes Morrissey-Berru, who was employed at Our Lady of Guadalupe School (OLG), a Roman Catholic primary school in the Archdiocese of Los Angeles. Excerpts of Record (ER) 58 in No. 17-56624 (CA9) (OLG). 1 For many years, Morrissey-Berru was employed at OLG as a lay fifth or sixth grade teacher. Like most elementary school teachers, she taught all subjects, and since OLG is a Catholic school, the curriculum included religion. App. 23, 75. As a result, she was her students' religion teacher.
Morrissey-Berru earned a B. A. in English Language Arts, with a minor in secondary education, and she holds a California teaching credential. Id ., at 21-22. While on the faculty at OLG, she took religious education courses at the school's request, ER 41-ER 42, ER 44-ER 45, ER 276, and was expected to attend faculty prayer services, App. to Pet. for Cert. in No. 19-267, p. 87a. 2
Each year, Morrissey-Berru and OLG entered into an employment agreement, App. 21,
3
that set out the school's "mission" and Morrissey-Berru's duties. See,
e.g
.,
Like all teachers in the Archdiocese of Los Angeles, Morrissey-Berru was "considered a catechist,"
i.e.
, "a teacher of religio[n]." App. to Pet. for Cert. in No. 19-267, at 56a, 60a. Catechists are "responsible for the faith formation of the students in their charge each day."
Id
., at 56a. Morrissey-Berru provided religious instruction every day using a textbook designed for use in teaching religion to young Catholic students.
Id
., at 45a-51a, 90a-92a; see App. 79-80. Under the prescribed curriculum, she was expected to teach students, among other things, "to learn and express belief that Jesus is the son of God and the Word made flesh"; to "identify the ways" the church "carries on the mission of Jesus"; to "locate, read and understand stories from the Bible"; to "know the names, meanings, signs and symbols of each of the seven sacraments"; and to be able to "explain the communion of saints." App. to Pet. for Cert. in No. 19-267, at 91a-92a. She tested her students on that curriculum in a yearly exam.
Id
., at 87a. She also directed and produced an annual passion play.
Morrissey-Berru prepared her students for participation in the Mass and for communion and confession. Id ., at 68a, 81a, 88a-89a. She also occasionally selected and prepared students to read at Mass. Id ., at 83a, 89a. And she was expected to take her students to Mass once a week and on certain feast days (such as the Feast Day of St. Juan Diego, All Saints Day, and the Feast of Our Lady), and to take them to confession and to pray the Stations of the Cross. Id ., at 68a-69a, 83a, 88a. Each year, she brought them to the Catholic Cathedral in Los Angeles, where they participated as altar servers. Id ., at 95a-96a. This visit, she explained, was "an important experience" because "[i]t is a big honor" for children to "serve the altar" at the cathedral. Id ., at 96a.
Morrissey-Berru also prayed with her students. Her class began or ended every day with a Hail Mary. Id ., at 87a. She led the students in prayer at other times, such as when a family member was ill. Id ., at 21a, 81a, 86a-87a. And she taught them to recite the Apostle's Creed and the Nicene Creed, as well as prayers for specific purposes, such as in connection with the sacrament of confession. Id ., at 20a-21a, 92a.
The school reviewed Morrissey-Berru's performance under religious standards. The " 'Classroom Observation Report' " evaluated whether Catholic values were "infused through all subject areas" and whether there were religious signs and displays in the classroom.
2
In 2014, OLG asked Morrissey-Berru to move from a full-time to a part-time position,
*2058
and the next year, the school declined to renew her contract. She filed a claim with the Equal Employment Opportunity Commission (EEOC), received a right-to-sue letter, App. 169, and then filed suit under the Age Discrimination in Employment Act of 1967,
Invoking the "ministerial exception" that we recognized in
Hosanna-Tabor
, OLG successfully moved for summary judgment, but the Ninth Circuit reversed in a brief opinion.
B
1
The second case concerns the late Kristen Biel, who worked for about a year and a half as a lay teacher at St. James School, another Catholic primary school in Los Angeles. For part of one academic year, Biel served as a long-term substitute teacher for a first grade class, and for one full year she was a full-time fifth grade teacher. App. 336-337. Like Morrissey-Berru, she taught all subjects, including religion. Id ., at 288; ER 588 in No. 17-55180 (CA9) (St. James). 6
Biel had a B. A. in liberal studies and a teaching credential. App. 244. During her time at St. James, she attended a religious conference that imparted "[d]ifferent techniques on teaching and incorporating God" into the classroom. Id ., at 260-262. Biel was Catholic. 7
Biel's employment agreement was in pertinent part nearly identical to Morrissey-Berru's. Compare
Biel's agreement also required compliance with the St. James faculty handbook, which resembles the OLG handbook.
*2059
as the school's first goal and provides that teachers must "mode[l] the faith life," "exemplif[y] the teachings of Jesus Christ," "integrat[e] Catholic thought and principles into secular subjects," and "prepar[e] students to receive the sacraments."
Like Morrissey-Berru, Biel instructed her students in the tenets of Catholicism. She was required to teach religion for 200 minutes each week, App. 257-258, and administered a test on religion every week,
Biel worshipped with her students. At St. James, teachers are responsible for "prepar[ing] their students to be active participants at Mass, with particular emphasis on Mass responses," ER 587, and Biel taught her students about "Catholic practices like the Eucharist and confession," id ., at ER 226-ER 227. At monthly Masses, she prayed with her students. App. to Pet. for Cert. in No. 19-348, at 82a, 94a-96a. Her students participated in the liturgy on some occasions by presenting the gifts (bringing bread and wine to the priest). Ibid .
Teachers at St. James were "required to pray with their students every day,"
As at OLG, teachers at St. James are evaluated on their fulfillment of the school's religious mission.
2
St. James declined to renew Biel's contract after one full year at the school. She filed charges with the EEOC, and after receiving a right-to-sue letter, brought this suit, alleging that she was discharged because she had requested a leave of absence to obtain treatment for breast cancer. App. 337-338. The school maintains that the decision was based on poor performance-namely, a failure to observe the planned curriculum and keep an orderly classroom. See
Like OLG, St. James obtained summary judgment under the ministerial exception,
Judge D. Michael Fisher, sitting by designation, dissented. Considering the totality of the circumstances, he would have held that the ministerial exception applied "because of the substance reflected in [Biel's] title and the important religious functions she performed" as a "stewar[d]
*2060 of the Catholic faith to the children in her class." Id ., at 621, 622.
An unsuccessful petition for rehearing en banc ensued. Judge Ryan D. Nelson, joined by eight other judges, dissented.
II
A
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Among other things, the Religion Clauses protect the right of churches and other religious institutions to decide matters " 'of faith and doctrine' " without government intrusion.
Hosanna-Tabor
,
The independence of religious institutions in matters of "faith and doctrine" is closely linked to independence in what we have termed " 'matters of church government.' "
The "ministerial exception" was based on this insight. Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. The rule appears to have acquired the label "ministerial exception" because the individuals involved in pioneering cases were described as "ministers." See
McClure v. Salvation Army
,
B
When the so-called ministerial exception finally reached this Court in
Hosanna-Tabor
, we unanimously recognized that the Religion Clauses foreclose certain employment discrimination claims brought against religious organizations.
In addition to these precedents, we looked to the "background" against which "the First Amendment was adopted."
Hosanna-Tabor
,
We pointed to the various Acts of Uniformity,
id
., at 182,
After the Restoration, Parliament enacted a new law with a similar aim. Ministers and "Lecturer[s]" were required to pledge "unfeigned assent and consent" to the Book of Common Prayer, and all schoolmasters, private tutors, and university professors were required to "conforme to the Liturgy of the Church of England" and not "to endeavour any change or alteration" of the church. Act of Uniformity, 1662, 14 Car. 2, ch. 4.
British law continued to impose religious restrictions on education in the 18th century and past the time of the adoption of the First Amendment. The Schism or Established Church Act of 1714, 13 Ann., ch. 7, required that schoolmasters and tutors be licensed by a bishop. Non-conforming Protestants, as well as Catholics and Jews, could not teach at or attend the two universities, and as Blackstone wrote, "[p]ersons professing the popish religion [could] not keep or teach any school under pain of perpetual imprisonment." 4 W. Blackstone, Commentaries on the Laws of England 55 (8th ed. 1778). The law also imposed penalties *2062 on "any person [who] sen[t] another abroad to be educated in the popish religion ... or [who] contribute[d] to their maintenance when there." Id ., at 55-56.
British colonies in North America similarly controlled both the appointment of clergy, see
Hosanna-Tabor
,
C
In
Hosanna-Tabor
, Cheryl Perich, a kindergarten and fourth grade teacher at an Evangelical Lutheran school, filed suit in federal court, claiming that she had been discharged because of a disability, in violation of the Americans with Disabilities Act of 1990 (ADA),
First, we noted that her church had given Perich the title of "minister, with a role distinct from that of most of its members."
Second, Perich's position "reflected a significant degree of religious training followed by a formal process of commissioning."
Third, "Perich held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms," and by claiming certain tax benefits.
Fourth, "Perich's job duties reflected a role in conveying the Church's message and carrying out its mission."
The case featured two concurrences. In the first, Justice THOMAS stressed that courts should "defer to a religious organization's good-faith understanding of who qualifies as its minister."
Id
., at 196,
The second concurrence argued that application of the "ministerial exception" should "focus on the function performed by persons who work for religious bodies" rather than labels or designations that may vary across faiths.
D
1
In determining whether a particular position falls within the
Hosanna-Tabor
exception, a variety of factors may be important.
10
The circumstances that informed our decision in
Hosanna-Tabor
were relevant because of their relationship to Perich's "role in conveying the Church's message and carrying out its mission,"
id
., at 192,
Take the question of the title "minister." Simply giving an employee the title of "minister" is not enough to justify the exception. And by the same token, *2064 since many religious traditions do not use the title "minister," it cannot be a necessary requirement. Requiring the use of the title would constitute impermissible discrimination, and this problem cannot be solved simply by including positions that are thought to be the counterparts of a "minister," such as priests, nuns, rabbis, and imams. See Brief for Respondents 21. Nuns are not the same as Protestant ministers. A brief submitted by Jewish organizations makes the point that "Judaism has many 'ministers,' " that is, "the term 'minister' encompasses an extensive breadth of religious functionaries in Judaism." 11 For Muslims, "an inquiry into whether imams or other leaders bear a title equivalent to 'minister' can present a troubling choice between denying a central pillar of Islam- i.e ., the equality of all believers-and risking loss of ministerial exception protections." 12
If titles were all-important, courts would have to decide which titles count and which do not, and it is hard to see how that could be done without looking behind the titles to what the positions actually entail. Moreover, attaching too much significance to titles would risk privileging religious traditions with formal organizational structures over those that are less formal.
For related reasons, the academic requirements of a position may show that the church in question regards the position as having an important responsibility in elucidating or teaching the tenets of the faith. Presumably the purpose of such requirements is to make sure that the person holding the position understands the faith and can explain it accurately and effectively. But insisting in every case on rigid academic requirements could have a distorting effect. This is certainly true with respect to teachers. Teaching children in an elementary school does not demand the same formal religious education as teaching theology to divinity students. Elementary school teachers often teach secular subjects in which they have little if any special training. In addition, religious traditions may differ in the degree of formal religious training thought to be needed in order to teach. See, e.g ., Brief for Ethics and Religious Liberty Commission of the Southern Baptist Convention et al. as Amici Curiae 12 ("many Protestant groups have historically rejected any requirement of formal theological training"). In short, these circumstances, while instructive in Hosanna-Tabor , are not inflexible requirements and may have far less significance in some cases.
What matters, at bottom, is what an employee does. And implicit in our decision in
Hosanna-Tabor
was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school. As we put it, Perich had been entrusted with the responsibility of "transmitting the Lutheran faith to the next generation."
Religious education is vital to many faiths practiced in the United States. This point is stressed by briefs filed in support of OLG and St. James by groups affiliated *2065 with a wide array of faith traditions. In the Catholic tradition, religious education is " 'intimately bound up with the whole of the Church's life.' " Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that "those who are designated teachers of religious instruction in schools ... are outstanding in correct doctrine, the witness of a Christian life, and teaching skill." Code of Canon Law, Canon 804, § 2 (Eng. transl. 1998).
Similarly, Protestant churches, from the earliest settlements in this country, viewed education as a religious obligation. A core belief of the Puritans was that education was essential to thwart the "chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures." 13 Thus, in 1647, the Massachusetts General Court passed what has been called the Old Deluder Satan Act requiring every sizable town to establish a school. 14 Most of the oldest educational institutions in this country were originally established by or affiliated with churches, and in recent years, non-denominational Christian schools have proliferated with the aim of inculcating Biblical values in their students. 15 Many such schools expressly set themselves apart from public schools that they believe do not reflect their values. 16
Religious education is a matter of central importance in Judaism. As explained in briefs submitted by Jewish organizations, the Torah is understood to require Jewish parents to ensure that their children are instructed in the faith. 17 One brief quotes Maimonides's statement that religious instruction "is an obligation of the highest order, entrusted only to a schoolteacher possessing 'fear of Heaven.' " 18 "The contemporary American Jewish community continues to place the education of children in its faith and rites at the center of its communal efforts." 19
Religious education is also important in Islam. "[T]he acquisition of at least rudimentary knowledge of religion and its duties [is] mandatory for the Muslim individual." 20 This precept is traced to the Prophet Muhammad, who proclaimed that " '[t]he pursuit of knowledge is incumbent on every Muslim.' " 21 "[T]he development of independent private Islamic schools ha[s] become an important part of the picture of Muslim education in America." 22
*2066 The Church of Jesus Christ of Latter-day Saints has a long tradition of religious education, with roots in revelations given to Joseph Smith. See Doctrine and Covenants of the Church of Jesus Christ of Latter-day Saints § 93:36 (2013). "The Church Board of Education has established elementary, middle, or secondary schools in which both secular and religious instruction is offered." 23
Seventh-day Adventists "trace the importance of education back to the Garden of Eden." 24 Seventh-day Adventist formation "restore[s] human beings into the image of God as revealed by the life of Jesus Christ" and focuses on the development of "knowledge, skills, and understandings to serve God and humanity." 25
This brief survey does not do justice to the rich diversity of religious education in this country, but it shows the close connection that religious institutions draw between their central purpose and educating the young in the faith.
2
When we apply this understanding of the Religion Clauses to the cases now before us, it is apparent that Morrissey-Berru and Biel qualify for the exemption we recognized in Hosanna-Tabor . There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities. Their positions did not have all the attributes of Perich's. Their titles did not include the term "minister," and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools' definition and explanation of their roles is important. In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution's explanation of the role of such employees in the life of the religion in question is important.
III
In holding that Morrissey-Berru and Biel did not fall within the
Hosanna-Tabor
exception, the Ninth Circuit misunderstood our decision. Both panels
*2067
treated the circumstances that we found relevant in that case as checklist items to be assessed and weighed against each other in every case, and the dissent does much the same. That approach is contrary to our admonition that we were not imposing any "rigid formula."
The Ninth Circuit's rigid test produced a distorted analysis. First, it invested undue significance in the fact that Morrissey-Berru and Biel did not have clerical titles.
Second, the Ninth Circuit assigned too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling than Perich.
Third, the
St. James
panel inappropriately diminished the significance of Biel's duties because they did not evince "close guidance and involvement" in "students' spiritual lives."
In Biel's appeal, the Ninth Circuit suggested that the
Hosanna-Tabor
exception should be interpreted narrowly because the ADA,
While the Ninth Circuit treated the circumstances that we cited in Hosanna-Tabor as factors to be assessed and weighed in every case, respondents would make the governing test even more rigid. In their view, courts should begin by deciding whether the first three circumstances-a ministerial title, formal religious education, and the employee's self-description as a minister-are met and then, in order to check the conclusion suggested by those factors, ask whether the employee performed a religious function. Brief for Respondents 20-24. For reasons already explained, there is no basis for treating the circumstances we found relevant in Hosanna-Tabor in such a rigid manner.
Respondents go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a "practicing" member of the religion with which the employer is associated. Brief for Respondents 12-13, 21. In hiring a teacher to provide religious instruction, a religious school is very likely to try to select a person who meets this requirement, but insisting on this as a necessary condition would create a host of problems. As pointed out by petitioners, determining whether a person is a "co-religionist" will not always be easy. See *2069 Reply Brief 14 ("Are Orthodox Jews and non-Orthodox Jews coreligionists? ... Would Presbyterians and Baptists be similar enough? Southern Baptists and Primitive Baptists?"). Deciding such questions would risk judicial entanglement in religious issues.
Expanding the "co-religionist" requirement, Brief for Respondents 28-29, 44, to exclude those who no longer practice the faith would be even worse, post , at 2078. Would the test depend on whether the person in question no longer considered himself or herself to be a member of a particular faith? Or would the test turn on whether the faith tradition in question still regarded the person as a member in some sense?
Respondents argue that Morrissey-Berru cannot fall within the Hosanna-Tabor exception because she said in connection with her lawsuit that she was not "a practicing Catholic," but acceptance of that argument would require courts to delve into the sensitive question of what it means to be a "practicing" member of a faith, and religious employers would be put in an impossible position. Morrissey-Berru's employment agreements required her to attest to "good standing" with the church. See App. 91, 144, 154. Beyond insisting on such an attestation, it is not clear how religious groups could monitor whether an employee is abiding by all religious obligations when away from the job. Was OLG supposed to interrogate Morrissey-Berru to confirm that she attended Mass every Sunday?
Respondents argue that the Hosanna-Tabor exception is not workable unless it is given a rigid structure, but we declined to adopt a "rigid formula" in Hosanna-Tabor , and the lower courts have been applying the exception for many years without such a formula. Here, as in Hosanna-Tabor , it is sufficient to decide the cases before us. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school's independence in a way that the First Amendment does not allow.
* * *
For these reasons, the judgment of the Court of Appeals in each case is reversed, and the cases are remanded for proceedings consistent with this opinion.
It is so ordered.
Justice THOMAS, with whom Justice GORSUCH joins, concurring.
I agree with the Court that Morrissey-Berru's and Biel's positions fall within the "ministerial exception,"
1
because, as Catholic school teachers, they are charged with "carry[ing] out [the religious] mission" of the parish schools.
Ante
, at 2066. The Court properly notes that "judges have no warrant to second-guess [the schools'] judgment" of who should hold such a position "or to impose their own credentialing requirements."
Ante
, at 2068. Accordingly, I join the Court's opinion in full. I write separately, however, to reiterate my view that the Religion Clauses require civil courts to defer to religious organizations' good-faith claims that a certain employee's
*2070
position is "ministerial." See
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
,
This deference is necessary because, as the Court rightly observes, judges lack the requisite "understanding and appreciation of the role played by every person who performs a particular role in every religious tradition."
Ante
, at 2066. What qualifies as "ministerial" is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis. See
Hosanna-Tabor
,
supra
, at 197,
Moreover, because the application of the exception turns on religious beliefs, the duties that a given religious organization will deem "ministerial" are sure to vary. Although the functions recognized as ministerial by the Lutheran school in
Hosanna-Tabor
are similar to those considered ministerial by the Catholic schools here, such overlap will not necessarily exist with other religious organizations, particularly those "outside of the 'mainstream.' "
The Court's decision today is a step in the right direction. The Court properly declines to consider whether an employee shares the religious organization's beliefs when determining whether that employee's position falls within the "ministerial exception," explaining that to "determin[e] whether a person is a 'co-religionist' ... would risk judicial entanglement in religious issues."
Ante
, at 2069. But the same can be said about the broader inquiry whether an employee's position is "ministerial." This Court usually goes to great lengths to avoid governmental "entanglement" with religion, particularly in its Establishment Clause cases. See,
e.g.
,
Lemon
v.
Kurtzman
,
As this Court has explained, the Religion Clauses do not permit governmental "interfere[nce] with ... a religious group's right to shape its own faith and mission through its appointments."
Hosanna-Tabor
,
supra
, at 188,
Here, the record confirms the sincerity of petitioners' claims that, as lay teachers, Morrissey-Berru and Biel held ministerial roles in these parish schools. For example, the Our Lady of Guadalupe Faculty Handbook states that lay teachers serve "special
pastoral
administrative roles ... in the service of the people of God." App. to Pet. for Cert. in No. 19-267, p. 52a (emphasis added). Moreover, their "essential job duties" include "[m]odeling, teaching of and commitment to Catholic religious and moral values."
The foregoing is more than enough to sustain the sincerity of petitioners' claims that Morrissey-Berru and Biel held ministerial roles in the parish schools. Their claims thus warrant this Court's deference and serve as a sufficient basis for applying the ministerial exception.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, dissenting.
Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court's decision in
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
,
*2072 The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers' claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor 's careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protections, I respectfully dissent.
I
A
Our pluralistic society requires religious entities to abide by generally applicable laws.
E.g.
,
Employment Div., Dept. of Human Resources of Ore. v. Smith
,
Congress, however, has crafted exceptions to protect religious autonomy. Some antidiscrimination laws, like the Americans with Disabilities Act, permit a religious institution to consider religion when making employment decisions.
The "ministerial exception," by contrast, is a judge-made doctrine. This Court first recognized it eight years ago in
Hosanna-Tabor
, concluding that the First Amendment categorically bars certain antidiscrimination suits by religious leaders against their religious employers.
When this Court adopted the ministerial exception, it affirmed the holdings of virtually every federal appellate court that had embraced the doctrine.
This focus on leadership led to a consistent conclusion: Lay faculty, even those who teach religion at church-affiliated schools, are not "ministers." In
Geary v. Visitation of Blessed Virgin Mary Parish School
,
Hosanna-Tabor
did not upset this consensus. Instead, it recognized the ministerial exception's roots in protecting religious "elections" for "ecclesiastical offices" and guarding the freedom to "select" titled "clergy" and churchwide leaders.
This analysis is context-specific. It necessarily turns on, among other things, the structure of the religious organization at issue. Put another way (and as the Court
*2074
repeats throughout today's opinion),
Hosanna-Tabor
declined to adopt a "rigid formula for deciding when an employee qualifies as a minister."
B
Those considerations showed that Perich had a unique leadership role within her church. First, the Court noted that the school had "held Perich out as a minister, with a role distinct from that of most of its members."
Second, the Court observed that Perich's job title "reflected a significant degree of religious training followed by a formal process of commissioning."
Third, the Court observed that Perich "held herself out as a minister of the Church by accepting the formal call to religious service" and "in other ways as well."
Finally, the Court looked to function, finding that Perich's "job duties reflected a role in conveying the Church's message and carrying out its mission" notably different from other members of the church.
Because this inquiry is holistic, the Court warned that it is "wrong" to "say that an employee's title does not matter."
Hosanna-Tabor
's well-rounded approach ensured that a church could not categorically disregard generally applicable antidiscrimination laws for nonreligious reasons. By analyzing objective and easily discernable markers like titles, training, and public-facing conduct,
Hosanna-Tabor
charted a way to separate leaders who "personify" a church's "beliefs" or who "minister to the faithful" from individuals who may simply relay religious tenets.
II
Until today, no court had held that the ministerial exception applies with disputed facts like these and lay teachers like respondents, let alone at the summary-judgment stage. See
Only by rewriting
Hosanna-Tabor
does the Court reach a different result. The Court starts with an unremarkable view: that
Hosanna-Tabor
's "recognition of the significance of " the first three "factors" in that case "did not mean that they must be met-or even that they are necessarily important-in all other cases."
Ante
, at 2063. True enough. One can easily imagine religions incomparable to those at issue in
Hosanna-Tabor
and here. But then the Court recasts
Hosanna-Tabor
itself: Apparently, the touchstone all along was a two-Justice concurrence. To that concurrence, "[w]hat matter[ed]" was "the religious function that [Perich] performed" and her "functional status."
Hosanna-Tabor
,
But this vague statement is no easier to comprehend today than it was when the Court declined to adopt it eight years ago. It certainly does not sound like a legal framework. Rather, the Court insists that a "religious institution's explanation of the role of [its] employees in the life of the religion in question is important." Ante , at 2066; see also ante , at 2069 - 2070 (THOMAS, J., concurring) (urging complete deference to a religious institution in determining *2076 which employees are exempt from antidiscrimination laws). But because the Court's new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp. 3
Indeed, the Court reasons that "judges cannot be expected to have a complete understanding and appreciation" of the law and facts in ministerial-exception cases, ante , at 2066 - 2067, and all but abandons judicial review. Although today's decision is limited to certain "teachers of religion," ante, at 2066 - 2067, its reasoning risks rendering almost every Catholic parishioner and parent in the Archdiocese of Los Angeles a Catholic minister. 4 That is, the Court's apparent deference here threatens to make nearly anyone whom the schools might hire "ministers" unprotected from discrimination in the hiring process. That cannot be right. Although certain religious functions may be important to a church, a person's performance of some of those functions does not mechanically trigger a categorical exemption from generally applicable antidiscrimination laws.
Today's decision thus invites the "potential for abuse" against which circuit courts have long warned.
Scharon
,
III
Faithfully applying Hosanna-Tabor 's approach and common sense confirms that the teachers here are not Catholic "ministers" as a matter of law. This is especially so because the employers seek summary judgment, meaning the Court must "view the facts and draw reasonable inferences in the light most favorable to" the teachers.
*2077
Scott v. Harris
,
A
1
Respondent Kristen Biel was a teacher at St. James School, a Catholic school in the Archdiocese of Los Angeles.
6
Biel initially served as a substitute teacher, teaching first grade two days a week. App. 248-249. At the end of the 2013 school year, the school hired Biel as a full-time fifth-grade teacher.
Biel's employment contract identified her position as just that: "Grade 5 Teacher." App. to Pet. for Cert. in No. 19-348, p. 103a; App. 328-329. The contract referred to Biel throughout as "teacher," and directed her to the benefits guide for "Lay Employees." App. to Pet. for Cert. in No. 19-348, at 105a; App. 320, 325, 327-329. The contract also stated that Biel would work "within [St. James's] overriding commitment" to church "doctrines, laws, and norms" and would "model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church."
Although St. James School "recommended" that teachers be Catholic, the school did not require it. App. 289. Nor did the school require teachers to have experience, training, or schooling in religious pedagogy.
Biel taught her fifth-grade class all its academic subjects, including English, spelling, reading, literature, mathematics, science, and social studies.
Near the end of the school year, Biel learned that she had breast cancer and would need surgery and chemotherapy. Biel informed the school and explained that her condition would require her to take time off from work.
2
In 1998, after a 20-year career in newspaper advertising and copywriting, respondent Agnes Deirdre Morrissey-Berru began working as a substitute teacher at Our Lady of Guadalupe School, another Catholic school in Southern California. App. to Pet. for Cert. in No. 19-267, p. 80a; App. 74. More recently, she taught fifth and sixth grade full time. App. 73-75.
Each year, Morrissey-Berru signed an employment contract with the school. Like Biel's contracts, these agreements referred to Morrissey-Berru as "Teacher" and directed her to the benefits guide for "Lay Employees." App. 91-100, 127-164; App. to Pet. for Cert. in No. 19-267, at 32a-42a. Notably, the faculty handbook promised not to discriminate on the basis of any protected characteristic, including "race," "sex," "disability," or "age." Record Excerpts in No. 17-56624, p. 648.
"At no time" during her employment did Morrissey-Berru "feel God was leading [her] to serve in the ministry," nor did she "believe [she] was accepting a formal ... call to religious service by working at Our Lady of Guadalupe as a fifth and sixth grade teacher." App. to Brief in Opposition in No. 19-267, p. 2a. Morrissey-Berru, in fact, is not a practicing Catholic.
*2079
Morrissey-Berru taught her class a range of subjects: reading, writing, math, grammar, vocabulary, science, social studies, and religion. App. 75. When teaching religion, Morrissey-Berru followed the contents of a preselected workbook. App. 79-80. Morrissey-Berru also "led her students in daily prayer" and assisted with planning a monthly mass.
In 2014, when Morrissey-Berru was in her sixties, the school did not renew Morrissey-Berru's contract.
B
On these records, the Ninth Circuit correctly concluded that neither school had shown that the ministerial exception barred the teachers' claims for disability and age discrimination. At the very least, these cases should have proceeded to trial. Viewed in the light most favorable to the teachers, the facts do not entitle the employers to summary judgment.
First, and as the Ninth Circuit explained, neither school publicly represented that either teacher was a Catholic spiritual leader or "minister." Neither conferred a title reflecting such a position. Rather, the schools referred to both Biel and Morrissey-Berru as "lay" teachers, which the circuit courts have long recognized as a mark of nonministerial, as opposed to "ministerial," status. See supra , at 2072 - 2073; App. to Pet. for Cert. in No. 19-267, at 32a-42a; App. 91-100, 127-164, 244-46, 320-329.
In response, the Court worries that "attaching too much significance to titles would risk privileging religious traditions with formal organizational structures over those that are less formal."
Ante
, at 2064. That may or may not be true, but it is irrelevant here. These cases are not about "less formal" religions; they are about the Catholic Church and its publicized and undisputedly "formal organizational structur[e]."
Ibid.
After all, the right to free exercise has historically "allow[ed] churches and other religious institutions to define" their own "membership" and internal "organization." McConnell, The Origins and Historical Understanding of Free Exercise of Religion,
The Court then turns to irrelevant or disputed facts. The Court notes, for example, that a religiously significant term "rabbi" translates to "teacher,"
ante
, at 2067, suggesting that Biel's and Morrissey-Berru's positions as lay teachers conferred religious titles after all. But that wordplay unravels when one imagines the Court's logic as applied to a math or gym or computer "teacher" at either school. The title "teacher" does not convey ministerial status. Nor does the Court gain purchase from the disputed fact that Biel and Morrissey-Berru were "regarded as 'catechists' " " 'responsible for the faith formation of the[ir] students.' "
Ante
, at 2056 - 2057, 2067 - 2068. For one thing, the Court discusses evidence from only Morrissey-Berru's case (not Biel's).
7
For
*2080
another, the Court invokes the disputed deposition testimony of a school administrator while ignoring record evidence refuting that characterization and suggesting that Morrissey-Berru never completed the full catechist training program. See,
e.g.
, Excerpts of Record in No. 17-56624 (CA9), at 41-42, 44-45, 67. Although the Archdiocese does confer titles and holds a formal "Catechist Commissioning" every September,
Second (and further undermining the schools' claims), neither teacher had a "significant degree of religious training" or underwent a "formal process of commissioning."
Hosanna-Tabor
,
Third, neither Biel nor Morrissey-Berru held herself out as having a leadership role in the faith community. Neither claimed any benefits (tax, governmental, ceremonial, or administrative) available only to spiritual leaders. Cf.
Hosanna-Tabor
,
That leaves only the fourth consideration in
Hosanna-Tabor
: the teachers' function. To be sure, Biel and Morrissey-Berru taught religion for a part of some days in the week. But that should not transform them automatically into ministers who "guide" the faith "on its way."
Hosanna-Tabor
,
Nor is it dispositive that both teachers prayed with their students. Biel did not lead devotionals in her classroom, did not teach prayers, and had a minor role in monitoring student behavior during a once-a-month mass. App. 79, 252-253, 256-259. Morrissey-Berru did lead classroom prayers, bring her students to a cathedral once a year, direct the school Easter play, and sign a contract directing her to "assist with Liturgy Planning." App. to Pet. for Cert. in No. 19-267, at 42a, 68a-69a, 95a-96a. But these occasional tasks should not trigger as a matter of law the ministerial exception. Morrissey-Berru did not lead mass, deliver sermons, or select hymns.
Nevertheless, the Court insists that the teachers are ministers because "implicit in our decision in
Hosanna-Tabor
was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school."
Ante
, at 2064. But teaching religion in school alone cannot dictate ministerial status. If it did, then
Hosanna-Tabor
wasted precious pages discussing titles, training, and other objective indicia to examine whether Cheryl Perich was a minister. Not surprisingly, the Government made this same point earlier in Biel's case: "If teaching religion to elementary school students for a half-hour each day, praying with them daily, and accompanying them to weekly or monthly religious services were sufficient to establish a teacher as a minister of the church within the meaning of the ministerial exception, the Supreme Court would have had no need for most of its discussion in
Hosanna-Tabor
." Brief for EEOC as
Amicus Curiae
in No. 17-55180 (CA9), p. 21. Rather, "the Court made clear in
Hosanna-Tabor
that context matters."
Were there any doubt left about the proper result here, recall that neither school has shown that it required its religion teachers to be Catholic. The Court does not explain how the schools here can show, or have shown, that a non-Catholic "personif[ies]" Catholicism or leads the faith.
Hosanna-Tabor
,
Pause, for a moment, on the Court's conclusion: Even if the teachers were not Catholic, and even if they were forbidden to participate in the church's sacramental worship, they would nonetheless be "ministers" of the Catholic faith simply because of their supervisory role over students in a religious school. That stretches the law and logic past their breaking points. (Indeed, it is ironic that Our Lady of Guadalupe *2082 School seeks complete immunity for age discrimination when its teacher handbook promised not to discriminate on that basis.) As the Government once put it, even when a school has a "pervasively religious atmosphere," its faculty are unlikely ministers when "there is no requirement that its teachers even be members of [its] religious denomination." Brief for Appellee in No. 84-2779 (CA9 1986), pp. 11, 29, n. 17. It is hard to imagine a more concrete example than these cases.
* * *
The Court's conclusion portends grave consequences. As the Government (arguing for Biel at the time) explained to the Ninth Circuit, "thousands of Catholic teachers" may lose employment-law protections because of today's outcome. Recording of Oral Arg. 25:15-25:30 in No. 17-55180 (July 11, 2018), https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014022. Other sources tally over a hundred thousand secular teachers whose rights are at risk. See, e.g. , Brief for Virginia et al. as Amici Curiae 33, n. 25. And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers' religious tenets.
In expanding the ministerial exception far beyond its historic narrowness, the Court overrides Congress' carefully tailored exceptions for religious employers. Little if nothing appears left of the statutory exemptions after today's constitutional broadside. So long as the employer determines that an employee's "duties" are "vital" to "carrying out the mission of the church," ante , at 2066, then today's laissez-faire analysis appears to allow that employer to make employment decisions because of a person's skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.
This sweeping result is profoundly unfair. The Court is not only wrong on the facts, but its error also risks upending antidiscrimination protections for many employees of religious entities. Recently, this Court has lamented a perceived "discrimination against religion."
E.g.
,
Espinoza
v.
Montana Dept. of Revenue, ante
, --- U.S. at ----,
I respectfully dissent.
A major theme of the dissent is that we do not heed the rule that, in deciding whether summary judgment is proper, a court must view the facts in the light most favorable to the party against whom summary judgment is sought. See
post
, at 2071 - 2072, 2075, 2076 - 2077, 2078 - 2079 (opinion of SOTOMAYOR, J.). But the dissent, which approves of the Ninth Circuit's reasoning, seems to forget that the Ninth Circuit in effect granted summary judgment
in favor of the teachers
on the issue of the applicability of the so-called ministerial exception. It did not remand for a trial on that issue but instead held that the exception did not apply.
In any event, the dissent's comments about summary judgment are so much smoke. It does not identify any disputed fact that is essential to our holding, and, although there are differences of opinion on certain facts, neither party takes the position that any material fact is genuinely in dispute.
After bringing suit, Morrissey-Berru filed a declaration stating that she is "not currently a practicing Catholic." ER 248. It is unclear what Morrissey-Berru means by "practicing." There is, however, no hint in the record that Morrissey-Berru considered herself a non-practicing Catholic during her employment at OLG. See infra , at 2057 (describing religious observation).
This appears to have been a standard contract used within the Archdiocese of Los Angeles. See App. 154; cf. id ., at 230.
It is not entirely clear from the record whether teachers at OLG must be Catholic.
Id
., at 113 ("[Q.] 'Is it a requirement that a teacher be Catholic in order to teach at OLG School? Yes or no?' [A.] Yes"); but see
Record in No. 2:16-CV-09353 (CD Cal.), Doc. 33, ¶9.
Biel died during the pendency of this suit, which has subsequently been litigated by her husband as representative of her estate. Record in No. 17-55180 (CA9), Docs. 112, 113.
The school principal stated that she prefers that teachers at the school be Catholic. ER 32 (St. James).
Record in No. 2:15-CV-04248 (CD Cal.), Doc. 67-1, ¶¶4-7.
Cf. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,
In considering the circumstances of any given case, courts must take care to avoid "resolving underlying controversies over religious doctrine."
Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church
,
Brief for Colpa et al. as Amici Curiae i, 3 (quotation modified).
Brief for Asma T. Uddin as Amicus Curiae 2.
Old Deluder Satan Act of 1647, in The Laws and Liberties of Massachusetts 47 (M. Farrand ed. 1929).
Ibid .
See P. Parsons, Inside America's Christian Schools (1987); see also Association of Christian Schools International, Why Christian Schooling?, https://www.acsi.org/membership/why-christian-schooling; Association of Classical Christian Schools, What is CCE?, https://classicalchristian.org/what-is-cce/?v=a44707111a05.
R. Dreher, The Benedict Option 146, 155, 160 (2017); see, e.g. , J. Ekeland & B. Walton, Discover Christian Schools: Ten Differences, https://discoverchristianschools.com/wp-content/uploads/2019/02/DCS_TenDifferences.pdf.
See Deuteronomy 6:7, 11:19.
Brief for General Conference of Seventh-day Adventists et al. as Amici Curiae 7-8 (quoting Maimonides, Mishne Torah, Hilkhot Talmud Torah 1:2; 2:1, 3).
Brief for Church of God in Christ, Inc., et al. as Amici Curiae 15.
Afsaruddin, Muslim Views on Education: Parameters, Purview, and Possibilities, 44 J. Cath. Legal Studies 143, 143-144 (2005).
Haddad & Smith, Introduction: The Challenge of Islamic Education in North America, in Educating the Muslims of America 3, 6, 11 (Y. Haddad, F. Senzai, & J. Smith eds. 2009).
Berrett, Church Educational System (CES) in 1 Encyclopedia of Mormonism 274, 275 (D. Ludlow ed. 1992).
Brief for General Conference of Seventh-day Adventists et al. as Amici Curiae 9.
Seventh-day Adventist Church, About Us, https://adventisteducation.org/abt.html.
The dissent charges that we transform the holding in
Hosanna-Tabor
, but that is what the dissent does.
Post,
at 2075. According to the dissent: "
Hosanna-Tabor
charted a way to separate leaders who 'personify' a church's 'beliefs' [and] 'minister to the faithful' from individuals who may simply relay religious tenets."
Post,
at 2075 (quoting
The dissent cobbles together this new test by taking phrases out of context from separate passages and inserting a proposition never suggested in Hosanna-Tabor , namely, that an individual cannot qualify for the exception if he or she "simply relay[s] religious tenets" without " 'minister[ing] to the faithful.' " Post , at 2075. Hosanna-Tabor never adopted this unworkable test. It did not suggest that the exception it recognized applied only to "leaders." Post, at 2073 - 2074, and n. 1. The term is never used in the opinion of the Court. Insisting on leadership as a qualification would shrink the exception even more than respondents advocate. For example, they agree that it should apply to nuns, see Brief for Respondents 21, but, under the dissent's test, is every cloistered nun-or every cloistered monk-disqualified? And even if leadership were a requirement, why couldn't a religious teacher be regarded as a leader of the students in the class?
Nor did our opinion in Hosanna-Tabor draw a critical distinction between a person who "simply relay[s] religious tenets" and one who relays such tenets while also " 'minister[ing] to the faithful.' " Post, at 2075. A teacher, such as an instructor in a class on world religions, who merely provides a description of the beliefs and practices of a religion without making any effort to inculcate those beliefs could not qualify for the exception, but otherwise the distinction makes no sense. If a member of the Christian clergy or a rabbi spends almost all of his or her time studying Scripture or theology and writing instead of ministering to a congregation, would that individual fall outside the exception as understood by the dissent?
See, e.g ., Mark 9:5, 11:21; John 1:38, 3:26, 4:31, 6:25, 9:2.
See App. to Pet. for Cert. in No. 19-267, at 56a, 60a; ER 593 (St. James) ("teachers are expected to ... engage in catechetical ... development"); Record in No. 2:15-CV-04248 (CD Cal.), Doc. 67-1, ¶10 ("requir[ing]" attendance at "Catholic education conference" to "prepare teachers as religious educators").
The record also makes clear (contrary to the Ninth Circuit's and dissent's conclusion, post , at 2080) that Morrissey-Berru and Biel "held themselves out" as authorities on religion to their students, and, by extension, their families. See supra , at 2055 - 2059.
As the Court acknowledges, the term "ministerial exception" is somewhat of a misnomer. See ante , at 2060 - 2061. The First Amendment's protection of religious organizations' employment decisions is not limited to members of the clergy or others holding positions akin to that of a "minister." Ibid. Rather, as these cases demonstrate, such protection extends to the laity, provided they are entrusted with carrying out the religious mission of the organization. Ante , at 2055 - 2056, 2066.
As I have previously explained, this Court's Establishment Clause jurisprudence "is unmoored from the original meaning of the First Amendment."
Espinoza
v.
Montana Dept. of Revenue, ante
, --- U.S. ----, ----,
While jettisoning most of Hosanna-Tabor 's majority opinion and insisting on "implicit" rationales that featured in a two-Justice concurrence, ante , at 2064 - 2065, today's Court curiously accuses this dissent of "cobb[ling] together" a standard focused on leadership, ante , at 2067, n. 26. But leadership was central in Hosanna-Tabor , just as it was explicit in the appellate court consensus that Hosanna-Tabor embraced. See supra, at 2072 - 2073.
Today's Court resists this commonsense approach, warning that it might mean that "a member of the Christian clergy or a rabbi" who "spends almost all of his or her time studying Scripture or theology and writing" would not fall within the ministerial exception. Ante, at ----, n. 26. Those examples betray the Court's holding: As the Court intuits (but does not recognize), the examples likely fall within the ministerial exception not just because of the functions involved but also because of the titles ("clergy" and "rabbi"), the training required to obtain those titles, and the time spent on religious activity ("almost all" of one's time). Ibid. It should be equally obvious that someone who spends a sliver of time reading, writing, or teaching about religion does not automatically become a minister of that religion.
Elsewhere, the Court hints at a comparative inquiry, noting that Biel and Morrissey-Berru were the school staff "entrusted most directly" with "educating their students in the faith."
Ante
, at 2066. Setting aside the Court's factual assumptions, one must ask: "[M]ost directly" compared to what (or whom)? The Court does not say. Perhaps the Court means to embrace the predominant circuit approach, which looked at whether a putative minister "serv[ed] primarily religious roles."
Hankins v. Lyght
,
See, e.g. , Archdiocese of Los Angeles, Administrative Handbook § 2.3.1 ("[P]arishioners are vital to parish life as volunteers. They participate as catechists in religious education, organize youth ministry and adult events, assist in charitable and social outreach activities in the community, and serve as extraordinary ministers of the Eucharist, lectors, altar servers, and ushers, as well as in other supporting ministerial roles"); Pope Francis, Post-Synodal Apostolic Exhortation on Love in the Family 13-14 (2015) ("The family is ... the place where parents become their children's first teachers in the faith .... Parents have a serious responsibility for this work of education").
The Court maintains that the Court of Appeals erred by "in effect" granting summary judgment to the teachers on the ministerial exception instead of "remand[ing] for a trial."
Ante,
at 2056, n. 1. Yet today's decision commits the exact error it claims to diagnose: The Court views the facts in the light most favorable to the schools and "in effect" grants summary judgment to the movants instead of remanding for a trial. As explained below, the Court is also wrong to assert that there is no material fact genuinely in dispute. Compare
Unlike the Court, I begin with Biel's case because it was the first one decided and the only one deemed precedential below. Biel passed away last year, losing her life to the same cancer that allegedly lost her a job at St. James. Biel's husband now represents her estate.
In Biel's case, the Court cites a page from St. James School's "Staff Guidelines and Responsibilities" setting out " 'expect[ations]' " and a declaration by the school principal about required attendance at a teacher conference. See ante , at 2067, n. 28. Neither shows as a matter of law that Biel was a "catechist" or that formal religious training was a prerequisite to her position. See infra , this page and 2080.
Although the Government supported Biel below, it has since switched sides without explanation. Odder still, the Government's brief to this Court faults the Ninth Circuit for having embraced the Government's prior views. Compare Brief for EEOC as Amicus Curiae in No. 17-55180 (CA9), p. 21, with Brief for United States as Amicus Curiae 16-17.
Reference
- Full Case Name
- OUR LADY OF GUADALUPE SCHOOL, Petitioner v. Agnes MORRISSEY-BERRU; St. James School, Petitioner v. Darryl Biel, as Personal Representative of the Estate of Kristen Biel
- Cited By
- 127 cases
- Status
- Published