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What is the ministerial exception? Where did it come from? What has the Supreme Court said about this legal doctrine? In this episode, Rebecca, Liz and Alison recount the history of the ministerial exception and break down the two major cases from the Supreme Court on point: Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission and Our Lady of Guadalupe v. Morrisey-Berru.
Background
Cases
Rebecca Markert:
Welcome to We Dissent the podcast with secular women attorneys discussing religious liberty in federal and state courts and our work to keep Religion and government separate. I'm Rebecca Markert with the Freedom From Religion Foundation.
Alison Gill:
I'm Alison Gill with American Atheists
Liz Cavell:
And I'm Liz Cavell, also with FFRF.
Rebecca Markert:
So if you enjoy our show, we hope you are following us on our socials, Facebook and Twitter. You can also find us online we-dissent.org/. In today's episode, we are going to discuss the ministerial exception. This is a doctrine that we have mentioned in passing several times on our show, including during our Carson versus Makin episodes where we talked about religious institutions and schools getting government funding.
But it's also come up many other times and we may not have actually used the term ministerial exemption, but it is part of these themes that we are really seeing from the cases that the Supreme Court is taking and what we believe that the court is doing where it is eroding the wall of separation between church and state while elevating the free exercise Clause through this broadening of exemptions. So the ministerial exception really comes up a lot in the context of labor laws and religion in the workplace.
But because we haven't really explained what it is, we thought it would be useful to do a 101 on the ministerial exception. What is it? Why does it exist and what has the Supreme Court said about it? And then we'll go into where we think this exception is going and how it is going to impact our real lives. So to begin, what is the ministerial exception? It is a legal doctrine that bars claims against churches by employees of those churches who carry out religious functions. In other words, it gives churches an affirmative defense when they're sued for discrimination by employees who qualify as ministers.
So the basic idea behind this doctrine is that churches and religious organizations are immune from employment lawsuits brought by ministers or employees that count as ministers. So why do we have this exception? Well, it's a hallmark of American law that you cannot use race, sex, age, Religion, et cetera in employment decisions. But the Constitution guarantees that churches have certain freedoms including the ability to choose their own leaders and their employees. And this exception comes up when this conflict arises between church autonomy and these anti-discrimination laws and employment.
Alison Gill:
I think it's fair to say this flows from both the Establishment Clause and the free exercise Clause, the ministerial exemption because you don't really have freedom of Religion if the government is picking the leaders of religious organizations and they're able to sort of determine their mission and what they teach and what they do entirely. But for the Establishment Clause too, if you have government that intricately involved with the inner workings of, uh, religious entities, then you are sort of de facto making them, you know, bodies of the, the federal government as well. So it really does flow from both elements of the Religion clauses.
Rebecca Markert:
And this is a principle that our organizations are not necessarily opposed to the idea that churches have. Autonomy is something that our government was founded on. People were fleeing this idea that the English monarchy was appointing the leaders of the Church of England and those institutions were really one and the same. And that is something that we didn't want. The basic idea of freedom of conscience is that the government does not dictate who leads your faith and what your faith is.
Liz Cavell:
Right? And a huge component of what the Establishment Clause was meant to guard against is what the court described in decades and decades of jurisprudence as entanglement between government and churches. Meaning the government should not have any say so whatsoever in how a church conducts its business, how a church defines its theology, et cetera. But just to get really basic, I wanted to just pose the question. Okay, the minute we're telling people the ministerial exception is a legal doctrine, where did the doctrine come from? Is this something that is from courts? Is this something that's from a statute? Like let's talk a little bit about the very basics.
Rebecca Markert:
So it is a judge made doctrine. It is an idea that came from the common law. Many, many cases have been decided where courts have used this type of exception to employment law decisions so that churches would be able to select their own leadership and have that autonomy that we were talking about earlier in 1964 when we saw the Civil Rights Act, there was a discussion of the exception added to that law.
Alison Gill:
It's a little bit strange to start at the Civil Rights Act in 1964 in some ways because there's not actually a ministerial exemption built in. There's an exemption that sort of aligns with the ministerial exemption, if that makes sense. But it doesn't actually talk about the ministerial exemption. So there's this history of the court sort of deciding these, these exemptions and that's rooted in the Constitution. And also we see this law, they passed the Civil Rights Act. And if you look at Title VII, which deals with employment of the Civil Rights Act of 1964, it deals with discrimination on the basis of race, national origin, sex and Religion.
And then age, pregnancy, disability were later added through other statutes. It has, uh, a couple different places where they make exceptions for religious organizations. One notable one and the one that's probably most widely cited is basically it says that an employer, a religious organization, employer, um, corporation association, educational institution or society, is able to, with respect to employment of individuals of a particular Religion, perform work connected and carrying on that entity.
So basically they have flexibility to discriminate on the basis of religion and only religion when they are hiring people to carry out the work of that religious organization or entity. So that's a little more tightly constricted than what we were talking about in some ways, but in other ways it's broader than ministerial exemption because it doesn't say anything about ministers here. It just says people carrying out the work. Right? And it also only allows discrimination on the basis of religion, but the ministerial exemption might be a bit broader and prevent any kind of suit for any type of discrimination. And we'll talk about some of the cases that really proved that to be the case.
Rebecca Markert:
The Supreme Court never addressed or mentioned the ministerial exception until 2012. So it is pretty recent that the Supreme Court acknowledged that this exception exists and really started to define for the lower courts what it looks like. There had been in the lower courts general agreement, on the exception that this exception existed, but they didn't agree on the specifics. Things like what positions count as a minister or ministerial.
We all understand that obviously pastors and priests and heads of churches would be part of that. But what about other positions at religious institutions like schools? These were the struggles in the lower courts. There was one case from the 1970s, um, where the Fifth Circuit Court of Appeals ruled that an employee couldn't sue the Salvation Army because it would quote result in encroachment by the state in an area of religious freedom in violation of the First Amendment.
But again, the Supreme Court didn't ever acknowledge this until 2012. And so there's no real guidance to the lower federal courts on how they should apply this exception that everybody sort of generally knows to exist. So we're gonna discuss the Hosanna-Tabor, evangelical Lutheran Church and School versus Equal Employment Opportunity Division. That's the case the Supreme Court took in 2012 to shorten it. We're just gonna call it Hosanna-Tabor.
Again, this is the time when the Supreme Court addresses this issue for the very first time. I thought it was interesting that this case was argued in October of 2011 and then decided in January, 2012. I just thought that was pretty remarkable cuz it just seems like such a fast turnaround. But in looking at some of the other cases that also involve this exception, um, they are pretty quick at turning around these cases or I just feel that like generally it seems like it's taking forever when we're watching some of these cases.
It just seemed like it took forever to get Kennedy last summer and dos and all that kind of stuff. But this one was a really fast turnaround, also notable because um, it was argued and decided all while I was on maternity leave with my first child. So but also was one of these cases before the two of you were part of our organizations and the secular coalition. That's right.
I like to talk about the people behind the cases. That is something that I think oftentimes gets lost, especially when lawyers are talking because we wanna talk about the doctrine and how it's applied in the courts. But we tend to forget that there are people behind these cases and especially when we're talking about these types of cases where there's discrimination happening, the lives of people are impacted so greatly that I think it's really important to understand who's behind these cases and what the courts are actually doing when they apply this exception in Hosanna-Tabor the plaintiff is a woman named Cheryl Perich.
She is an elementary school teacher at Hosanna-Tabor School in Redford, Michigan. She taught kindergarten and then eventually moved to fourth grade. Hosanna-Tabor is a school that offers Christ-centered education to students. It follows the dictates of the Lutheran Church, the Missouri Senate, and it classifies teachers as either called or le called teachers are what you would think they would be. They're called to their vocation by God. They also have to take studies. There's usually eight courses in theology that they need to undergo and then they will receive the title of Minister of Religion and a lay teacher at the school is what you would think. It's not trained at all in theology or by the Senate.
Perich is first employed as a lay teacher in 1999, but then she completed her training and so she was designated a called teacher in 2005. She finds herself sick and needs to go on disability leave. Eventually she is diagnosed with narcolepsy and after her leave she notifies the school that she's able to return to work. The school in the interim has found somebody else to teach and they are of the belief that she's not ready and able to return to work. So eventually the congregation votes to offer her, and I think this is a little funny, a peaceful release from her calling
Alison Gill:
Wow, that sounds like death. Okay.
Rebecca Markert:
Right, right. It's very, I just brought to mind that whole conscious uncoupling here we're, we're not firing, you we're just offering you a peaceful release from your job. So they basically ask her to resign and she refuses and has medical documentation, meaning she got a note from her doctor that she's able to return to work. She tells the school that I'm going to start teaching again in February. I will be there.
So she goes to the school the first day that she's cleared medically to return to work and they don't let her teach, but she refuses to leave and is told, you know, you're likely going to get fired. And they eventually do fire her citing that she was disruptive and her behavior was inappropriate. She engaged in insubordination and also they mentioned, Hey, you know, you were also threatening to sue us and that's not cool.
Alison Gill:
So is that a, is that a violent release
Rebecca Markert:
Right, yes. Apparently she did not want her peaceful release from her contract. She sues the school for violating the Americans with Disabilities Act and she lost at the district court, but then the Sixth Circuit disagreed and said that she was not a minister, she was a teacher at the school. So it goes all the way up to the Supreme Court and we get a unanimous decision by the Supreme Court that she has lost her claim. She is covered by the ministerial exception and she is barred from filing this type of lawsuit against the school Chief Justice Roberts is the justice who writes the opinion for the 9-0 majority.
And they hold that the Establishment and free exercise clauses bar this type of suit brought on behalf of ministers against churches claiming termination in violation of discrimination laws. The court specifically said that this court holds only that the ministerial exception bars and employment discrimination suit brought on behalf of a minister challenging her church's decision to fire her.
The court expresses no view on whether the exception bars, other types of suits. It's just interesting reading these cases now going back just because of the year that we've just had. I don't think that I noted this as remarkable back in 2012, but they start this decision by recounting history of religious strife and they go back, they do this for seven pages and they go back starting with the Magna Carta in 1215, oh boy. Which is very similar to what we saw in the Dobbs decision when they were going back to the 14th century and recounting all of this history to get us to where we are.
So they note that the Magna Carta in 1215 said that the Church of England shall be free. Then they go to Henry VII and talk about what he did to the English church and why the Puritans sought religious freedom to really escape this control of the national church. And then they conclude that the Religion clauses ensure that the federal government, unlike the English crown, would have no role in filling these offices.
The court agrees yes, there is a ministerial exception and here is another quote from the case requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs by imposing an unwanted minister the state infringes on the free exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.
So here this is really the court finding that the ministerial exception is grounded in these Religion clauses as we talked about before. So the purpose, um, and the idea behind the ministerial exception, the court then discusses how it's applied here in Pars cases and they say that the ministerial exception is not limited just to the head of a religious organization, but the court's not going to decide or adopt a rigid formula for deciding when an employee would be considered a minister and would qualify for this exception.
But they still go through a number of things that you would think are a checklist of sorts perhaps or criterion that would show that it is a ministerial exception or that they count as a minister for the purposes of the exception. They discussed that the school held her out as a minister. They pointed to her diploma that she had this vocation, this calling to be a minister and that her title after she received that training was that she was a minister of Religion.
They reviewed her for skills of ministry and ministerial responsibilities as part of her annual performance reviews. And they asked her to complete continuing education classes on Religion. Notably, she also claimed a housing allowance under the tax code that generally is only available for ministers of the gospel.
The role that she had in conveying the church's mission and message was part of her daily activities. She taught religion, she led the kids in prayer. She took them to mass, she picked out students who would have to do readings at mass and they took all of those things into consideration and said that with the formal title given to her by the church and the substance that was reflected in her title, how she used it and the functions that she performed for the church in her duties as a teacher, they conclude that she's a minister covered by the exception.
Liz Cavell:
I was just gonna jump in to say that the opinion in Hosanna-Tabor, like Rebecca said was unanimous, but I think there was at least one concurrence and that was Justice Alito and there was strange bedfellows cuz the whole court agreed on this, which is why I think it probably turned around so fast, Rebecca, because this was like Justice Roberts bliss when like nine justices <laugh>
Rebecca Markert:
<laugh>,
Liz Cavell:
You know, he would like shoot this out of a T-shirt gun if he could <laugh>. But anyway, Justice Alito, I can't remember who his, who joined his concurrence, but it wasn't, it was partisan lines, it was Kagan
Rebecca Markert:
Kagan, Justice Kagan,
Liz Cavell:
Right? I think there was some angst about the fact that the court didn't wanna be seen as putting out a rigid test. But it's hard not to read the case and see the facts that the court found persuasive and deciding that this teacher qualified as a minister as something like factors that future courts would consider the factors being these types of kind of hallmarks of how the employee functions within the scope of the church organization.
So I think like it's not unreasonable to see all of those facts that Rebecca just laid out as something like factors, not a rigid test, but the things that you would look for, the types of things you would look for to determine whether or not someone is a minister or just a regular employee of a church.
Rebecca Markert:
And the concurrence that you're talking about, Justice Alito wrote that concurrence, was joined by Kagan. He really wanted to avoid the use of the term minister because he recognized that, you know, there's 300 some religions in the United States and we don't want the exception to be cabined to people who use the term ministers because not all religions in the United States do. But he did note, which would become sort of foreshadowing for where the court's gonna go.
He did say that the ministerial exception should apply to any employee who leads a religious organization conducts worship service or important religious ceremonies or serves as a messenger or teacher of its faith. So you know that from that, that he, he's already sort of looking to expand it beyond what they just did there.
Alison Gill:
Justice Thomas also had a concurrence, which I think is further reaching and I would think could be, you know, this case is pretty clear cut. I think all of us would have trouble arguing with these factors, right? But Thomas's concurrence goes a lot further and is even more troubling. He basically said that the Religion clauses require courts to defer to the religious organization's understanding of who qualifies as minister. So basically the religious entity itself gets to decide if they're a minister and of course it gets to decide that after they've been sued <laugh> as well, right?
So they can decide after the case is brought. He says the right to choose ministers would be hollow if courts could second guess that decision. But if you don't let their courts sort of play some role in that decision making, then you have complete deference to whatever the religious organization says, which of course we'll talk about this more later, will, will eviscerate non-discrimination law for those entities.
Rebecca Markert:
Well, and it also just brings up the fact that this exception is abused in certain circumstances. Um, you know, I mentioned that Cheryl in the Hosanna-Tabor case, Cheryl Perich claimed a housing allowance exception as a minister of the gospel. And that is a section of the tax code that allows you to deduct your housing expenses from your income taxes. And that exception is used widely by many different employees of religious institutions. And to qualify as a minister, there's no real guidance of course, but we've seen people like basketball coaches at religious schools using this exception. So I mean, it, it really can be broad,
Liz Cavell:
Right? I have to jump in here cuz of course the housing allowance is the pet peeve of our organization, the Freedom From Religion Foundation. And we have famously or infamously sued the IRS several times to challenge the constitutionality of the housing allowance because it's not available to our organization's. Similarly situated leaders who are not ministers but are counterparts at religiously affiliated non-profits abused in our view the mini or the housing allowance to basically get out of paying taxes.
The way it works is that you work for a religious organization and they wanna pay you a hundred thousand dollars a year, but nobody wants to pay taxes on as much as possible. So they designate 50,000 of that as your housing allowance and then that 50,000 is tax free income. So that obviously resounds to the benefit of the church and to the minister. And of course the IRS has interpreted minister the same way Justice Alito argues for, which is it broadly applies to any religious leader.
But what FFRF has sued for in the past is that it violates the Establishment Clause cuz it's clearly a tax benefit. It's literally a fi financial benefit offered by the government to religious people only. It's not available on equal terms to atheists that are similarly situated. But it's definitely a parallel to the ministerial exception because it's the same type of mechanism working to exempt these religious leaders from laws that otherwise bind the rest of us.
Those of us that work for secular employers or teachers that work at public schools or even private, but secular schools, if they are discriminated against because of their disability or fired because they're pregnant or whatever it is, they, they can sue and they can at least have their day in court to fight their discrimination claim. But of course the exceptions to those suits are for religious employers only.
Rebecca Markert:
Getting back to the Hosanna-Tabor case, it's decided it's unanimous and then there's no questions after that. Um, everybody's clear on how to apply this ministerial exception. Of course. I'm joking. There were lots of questions that remained after the decision, like who's a minister? When does an employee of a religious institution become a minister? Is it when they have this title? Is it when they have religious training? Does the employee need to hold themselves out as a minister? Is it just about their job duties? There's lots of questions and of course after the Supreme Court lays out, there's more litigation that happens.
And in 2020 the court discusses this exception again in a case known as Our Lady of Guadalupe versus Morrissey-Berru. This is another timeframe where it just seems like 2020 seems like a lifetime ago. But it was only three years ago. There was so much happening this summer that this decision came down with the pandemic and Black's Lives Matter and everything just, it feels like forever ago. But this case involved two consolidated cases out of the state of California.
So again, I wanna talk about the plaintiffs in these cases because there's some really awful sad stories that come from these cases. And, and I really think that again, these plaintiffs, their stories and the impact were, were really lost in the discussion of the case. So the plaintiffs were two teachers at Catholic schools in Los Angeles. Agnes Morrissey-Berru was a fifth grade and sixth grade teacher who taught all subjects at Our Lady of Guadalupe Primary school in Los Angeles. It's a Roman Catholic school. All of the teachers in the archdiocese are considered catechists or teachers of Religion and they're responsible for the faith formation of their students.
So she teaches them about mass, the sacraments and prayers for the Catholic church. But it's interesting to note that she's not actually a practicing Catholic. She didn't have the title of minister and obviously as not a practicing Catholic, she never held herself out to be a minister of Religion for the Catholic church. She sues for age discrimination because she was demoted and then her contract was not renewed after she had taught for 16 years. Her replacement was a younger teacher and the school claimed that Agnes couldn't perform the work anymore, that there was a new reading and writing program. And that was one of the reasons why her contract was not renewed.
Then the other plaintiff that we wanna talk about is Kristen Beal. She's a fifth grade teacher at St. James School, also in Los Angeles. She was being treated for breast cancer and she requests a leave of absence from the school so that she could get treatment and she lost her job because of that. Her employment agreement was very similar to Agnes's. She needed to teach the students the tenants of the Catholic faith, pray with them, go to mass, things like that.
Unfortunately, she tragically died before this case was concluded and her husband had to carry her claims forward. Both teachers had actually won the right to pursue their discrimination suits before the Ninth Circuit Court of Appeals and the schools then appeal to the Supreme Court.
Alison Gill:
It's an important thing to note here, and that's that we're not even talking about the merits of these cases. So in Agnes's case, for example, she's claiming she's able to teach this and the school's discriminating against her because of her age. The school's claiming, oh, you can't teach this, uh, you're not qualified. So that's a, that's a factual matter that they, the court's not even going to get to because as a preliminary matter, what the ministerial exemption does is say you can't even go to court to enforce your rights here because you're a minister. You can't even access the court. So I think that's an important distinction.
Rebecca Markert:
Yes, thank you. Thank you for that. This case goes up to the Supreme Court and we get a decision in the summer of 2027 to two and it is written by our friend, Justice Alito and friend
Alison Gill:
Of the pod, right? <laugh>
Rebecca Markert:
The friend of the pod, an all around fun guy. And the court finds that both of these teachers do qualify as ministers under the exception because they perform vital religious duties. And in another sort of theme we're seeing from the court on religious liberty cases, he says, we told you that there was no checklist or rigid formula. So when the Ninth Circuit was looking at those factors that Liz and I discussed earlier and said, well, because of all of these reasons, they're not ministers for purposes of the exception, Alito says, and the majority says you shouldn't have been looking at that as a checklist because it was not, there's no rigid formula for this exception.
Titles and academic training are not necessarily dispositive of whether the exception applies, but what does matter is what the employee does. And so we have to take in all of the relevant circumstances of the employee's role and the performance of their duties.
And so here are a couple of quotes from the majority opinion. The first one is the religious education and formation of the students is the very reason for the existence of most private religious schools. And therefore the selection and supervision of teachers upon whom these 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.
Or more simply put, here's another quote. When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in 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, again, they point to the fact that a component of church autonomy is the selection of individuals who play certain key roles and they recognize that educating young people into the Catholic faith inculcating its teachings and training them to live their faith are responsibilities that lie at the very core of the private school. And that teachers play a very important role in that.
Alison Gill:
But under that sort of analysis, I mean, the question is, can a teacher at a religious school ever not be qualified as a minister? And I think the answer is no. Right? I mean based on that kind of analysis and also he talks about disputes. He doesn't say like employment, like decisions about hiring or firing. He says employment disputes. What if it's an hourly wage dispute or like a harassment dispute or something else that's labor related, you know what I mean? Right. Um, I'm sorry, I'm off topic, but there's a lot of things here.
Liz Cavell:
No,
Rebecca Markert:
You're right. And I feel like even though Thomas was the one who took the more extreme example, I think that that deference is really shining through in the majority opinion as well.
Liz Cavell:
Yeah, I agree with that. I mean, as is born out a lot these past couple of years, you look to the totally off the wall justice Thomas concurrences from like 10, 11 years ago as staking out this really radical fringe kind of point of view on these cases. And then fast forward to now 2020 and beyond, and you're really seeing that view being pushed into these majority opinions. I mean, there is definitely a major flavor of deference is going to be shown to employers in deciding these questions.
And all we're looking at is function by which we mean if you have a teaching role within a religious organization, you are functionally ministering. And so I agree with Alison. I can't imagine an employment dispute involving a teacher at a religious school that would get in the courtroom doors like after our Lady of Guadalupe
Rebecca Markert:
And other employees, I mean like the secretary at the school. I mean, there has to be some sort of role in helping the students form their faith by whatever duties that he or she performs as a secretary of the school or as administrative assistant to the school. I feel like there is a way that they're allowing this religious institution to frame the roles and responsibilities of that employee in a way that the exception would automatically apply.
Because you know, I mean even if you're looking at a gym teacher or some sort of school, you're going to have some aspect that whatever they're doing is godly and helping children embody the Holy Spirit or something like that. I don't know. But you know, there's just ways for the institutions to frame these roles and responsibilities in a way that they're always going to get this ministerial exception sort of get out of jail free card
Alison Gill:
Because education is core to promulgating religious belief. All the job roles involved in education are also core, I think is what we're sort of saying. Right,
Rebecca Markert:
Exactly. Yes.
Alison Gill:
Yeah. Oh, we, we hear them saying, I should say.
Rebecca Markert:
Right, right. And so yeah, we do get another concurrence from Justice Thomas again, he writes, just to reiterate that he thinks there should be deference to the religious organization in defining who qualifies as a minister.
But we also get a dissent from Justice Sotomayor who is joined by the late great Ruth Bader Ginsburg. And you know, we've always talked about how great Ginsburg was with her dissents, but I think this is when we really started noticing how amazing Justice Sotomayor's dissents also were. And this was one of the first ones where I thought she came out swinging. And if I could, in all of the work that I did analyzing this decision, explaining it to everybody, I just kept telling everybody, I wish I could cut and paste the whole thing and just have everybody read it. Because she did a great job of explaining the problems with the majority's decision here.
And I'm just gonna read the first paragraph of her dissent because I think again, it really just shows how thoughtful and how much of an ally for state church separation she really is for us. So here, oh, and, and true religious liberty really. So she writes in the court's view because employees taught short Religion modules at the Catholic elementary schools, they were ministers of the Catholic faith and thus could be fired for any reason, whether religious or non-religious benign or bigoted without legal recourse.
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 teacher's claims. The court skews the facts, ignores the applicable standard of review and collapses Hosanna-Tabor 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 school teachers of their legal protections. I respectfully dissent.
Liz Cavell:
Right? And what she's pointing to is how much the, our Lady of Guadalupe case really broadened and just exploded the ministerial exception from what was laid down in 2012.
Rebecca Markert:
Right. It was always sort of a narrow exception. And this really does broaden the exception. And she even says here, you know, now it's not just reserved for leadership roles, um, it now can be for anybody. Um, she wrote also it gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ministers, even when the discrimination is wholly unrelated to the employer's religious beliefs or practices.
Alison Gill:
I'll say that's separate from Title VII we were talking about earlier, which has eliminated exemption, but it's only for discriminating on the basis of religion, not other categories.
Rebecca Markert:
Right,
Liz Cavell:
Right. Well that makes sense. Like I, I'm gonna, this maybe I'm gonna jump in here and just say, you heard us all talk at the beginning of the episode about like the rich American history of like secularism and why we laid out these two clauses in our first amendment and how the concept behind the ministerial exception makes a, a sort of sense in terms of having a government that is truly secular. And it does go both ways, which means you really don't want government entanglement in religious organizations and churches and religious institutions selecting who the leaders are within their faith.
But the logical thing that that applies to is church leadership, right? Like clergy, who are your clergy people. When we're talking about the ministerial exception, I think all of us would say that there is a role for that type of exemption when it comes to church leadership and clergy, but it makes no sense.
Like it's no longer an exception anymore. It's just the role, if it's collapsed to just be described as whatever the religious organization thinks is essential to its religious functioning. Of course these employers don't want to be open to lawsuits from their employees. Of course they're gonna take every possible advantage of a doctrine that makes it so that they're in control of who's able to sue them just by how they define their function and role within the organization. So it really just turns the exception into the rule and makes it so that functionally employees of these organizations are really vulnerable to abuse.
Rebecca Markert:
And that's how Sotomayor actually ends her dissent. She says what the court decided is right for abuse and she points out that over a hundred thousand secular teachers whose rights are at risk. And that says nothing of the rights of the countless coaches, camp counselors, nurses, social service workers, in-house lawyers, media relations personnel, and many others who work for religious institutions. All of those rights are also at risk. And it really goes to how this exception now the rule is expanded to many other different employees.
Alison Gill:
These cases are both about education, right? But there's nothing and we, we made this point in our amicus brief along with we joined Dynamics brief with, uh, center for Inquiry and and American Humanist Association and others made this point that in other organizations did too, that there's nothing limiting this to education at all. This could easily extend to healthcare is the most obvious place it could extend cuz there's hundreds of Catholic hospitals throughout the country and you know, they open Catholic hospitals because they believe offering care for the sake is part of their mission, right? That's part of their missions.
It's easy to make an argument that a doctor offering care to a sick person is furthering the Catholic mission and it's core to the Catholic mission. So in that sort of analysis, you end up in exactly the same place you do as a teacher, don't you? So that's the problem here. We could really end up in a place where they just collapse all non-discrimination provisions for religious organizations if we start to head in that direction.
Liz Cavell:
That's exactly right. And speaking of amigos briefs, FFRF joined the American Medical Women's Association in a brief, at this case basically arguing a similar thing with a focus on how vulnerable the healthcare sector is to the expansion of this doctrine. Because of how many hospital systems in our country are owned and operated by the Catholic Church or other religious organizations, it's in the millions in terms of how many healthcare workers are employed by a religious employer. I mean, just think of every single person it takes to run a hospital system.
And if you think of all or most of those employees being subject to the ministerial exception, that's really alarming. And it just completely, again, like Alison said, eviscerates these anti-discrimination in employment protections for all of those people. And oftentimes unbeknownst to them, right? Like you're not finding out that you're not protected by these laws until you're fired or you're discriminated against and you're looking around going, wait, what are my remedies? And being told actually your employer is immune to these lawsuits because they're Catholic or whatever the case may be.
So it is really alarming and I have no doubt Alison that this Supreme Court, which is for all purposes the same majority and only stronger than was in 2020. I have no doubt that this court faced with a Catholic hospital employee bringing in an employment discrimination claim would apply the ministerial exception to that lawsuit.
Alison Gill:
A hundred percent. Yeah, no, I absolutely agree. And it's not like they put this on the job announcements, right? They don't put Oh right, guess what? You're not subject to non-discrimination or labor laws in general including non-discrimination laws. But also most of them have policies that say, actually we don't discriminate on the basis of X, Y, Z because they pretend that federal law applies. So you could apply for the job thinking that you're protected under federal law when you're actually not. And that's something that's, you know, they could actually trick potential employees that way.
Liz Cavell:
That's really insidious and I didn't really think of that, but you're quite right. You could easily just hold yourself out as not discriminating on all these basis. And I mean technically it may or may not be true, right? Cuz it's a different thing to say, we're not amenable to lawsuit over these things,
Rebecca Markert:
But even if they don't advertise that they're not gonna discriminate. I mean, I think it's just, it goes back to this core principle of American law. I mean, we've all grown up and understand very intimately that nobody's allowed to discriminate on these bases. And so if you're working for a hospital as a nurse or something like that, and then you get fired for a reason like pregnancy or something like that, you obviously think, well this is wholly illegal and I have rights. And I think a lot of people are surprised. It's sort of similar to how everybody believes that they have unfettered free speech.
And when Twitter shuts everybody down, like, hey, that is bridging our freedom of speech. Like people, there's certain principles that are so core to the American psyche and that they just are surprised to find out that they have no remedies in the courts, um, when faced with these types of situations. And I think this type of discrimination, especially when you're working for organizations that yes, are run by Catholic institutions and largely the employees are largely not Catholic, they just assume that they're going to have the rights that they would at any other place of employment.
Alison Gill:
So just to put this in context a little bit, I, this provides another bite at the Apple for religious organizations to get around non-discrimination protections. But it's not the only one, right? So if you look at Title seven as an example, the Federal Employment Non-Discrimination Law, it covers certain categories and there's already a religious exemption built into it like we talked about earlier. So that's one sort of around for religious organizations.
Secondly, we've been seeing in the courts for years and years that religious organizations are trying to use general statutes like the Religious Freedom Restoration Act and similar sorts of broad exemptions to get around non-discrimination protections.
And then third, we have this ministerial exemption. So we see there's multiple different doctrines sort of starting to meet and carve away at non-discrimination laws and other types of labor laws for that matter. I mean, we keep saying non-discrimination, but that's not, that's not limited to, I mentioned wage, wage laws earlier, right? So those are these work in concert and they make these labor laws less and less applicable to people that work for these organizations.
Liz Cavell:
And you've heard us talk about our and your adversaries conservative Christian legal organizations like the Alliance, Defending Freedom. And this is definitely another sort of crusade that they have in the courts is expanding further the ministerial exception. So I know they, since Hosanna-Tabor had been continuing to petition the Supreme Court to hear cases that are being denied on the grounds of the ministerial exception not applying.
So in the college context, trying to expand who should be thought of as a minister in terms of who works at religious colleges and universities, which like hospitals are just these massive behemoth employers that maybe run by a religious organization. But every single professor and food service worker that works for a religious college and university, you would hope would not be unable to sue the college or university for adverse employment actions. ADF and groups like it are behind some of these lawsuits and continuing to push these issues at the Supreme Court to further expand who qualifies as a minister and how far the exception reaches
Alison Gill:
Conceivably these could even extend to for-profit entities. I mean, if you look at the Hobby Lobby case, for example, I mean they extended R Row protections, religious Freedom Restoration Act protections to closely held businesses, right? So in that example, they were imputing the corporations religious beliefs from the individual basically. So the small group of people that owned the stock in that organization. So with that sort of framework, it's not inconceivable that they could do the same, uh, for ministerial exemptions too. That's not something we've seen yet, but like we're talking about what might be of the future.
Liz Cavell:
Yep. I agree completely with that.
Rebecca Markert:
So what are we seeing in the states? Alison, you're a policy person. Are we seeing any moves in the state legislatures to broaden this exception?
Alison Gill:
Sure. We're not seeing so much as the ministerial exemption on its own. We're seeing it apply in the context of some of the denial of care bills. So these are bills that allow hospitals and medical providers and even insurance companies to not provide or pay for any care that they morally or religiously disagree with. And so these are very, very broad bills, but some of them are recent ones that have passed, like the one that passed in South Carolina last year, have a very broad exemption cardell built into them. And I'll, I'll read that real quick so you can understand what I mean.
Notwithstanding any other provision of this chapter to the contrary, a religious medical practitioner, healthcare institution or healthcare payer that holds itself out to the public as religious states in its government documents that it has religious purpose or mission and has internal operating policies or procedures that implement its religious beliefs, has a right to make employment staffing contracting and admitting privileged decisions consistent with its religious beliefs.
So basically just laying out, they have complete freedom to make all these decisions consistent with its religious beliefs regardless of any other consideration. So that's, it's basically expanding automatically the religious exemption to healthcare entities in the state. And this has not got a lot of attention because the focus is on the rest of the horrible bill around denial of care saying, right, this is all this care, it's gonna be denied, it's gonna harm pregnant women, it's gonna h harm abortion access, it's going to harm LBGT people, it's gonna harm end of life issues. But like, you know, this sort of sneaks through, right?
Liz Cavell:
Right. And again, it's right here in the language. They have the right to make employment staffing contracting and admitting privileged decisions consistent with religious beliefs, notwithstanding any other provision to the contrary, meaning they are exempt from other laws that would otherwise regulate all of those things. And so again, if you're an employee of one of this broad list of institutions, you are not protected.
Rebecca Markert:
They're seeking exemptions in so many different areas that it really is just elevating their particular beliefs above everybody else's and really harming people. It's a real weaponization of religious liberty here. I also wanted to talk a little bit about it, because I'm just kind of thinking along these same lines. The Espinoza decision came down the same summer that our Lady of Guadalupe came down. And I think the refrain from all of our organizations was, they don't want to be discriminated against. They want to have government benefits like money, but they don't want to be told that they themselves cannot discriminate.
And that was really what came out of that Supreme Court term that decided Espinoza and our Lady of Guadalupe.
Alison Gill:
I mean that's the ultimate goal, right? Religious supremacy. So the court basically said religious education is so core to the religious organization's message and what their purpose is that they get to sort of treat every teacher like a minister, right. At the same time, for the purposes of state funding, it's, you know, it's just education. You shouldn't treat it differently than other types of education. If you're funding private education through vouchers, you have to give it to religious organizations too, because the education is not intrinsically religious basically. So it's, it's both, it's whatever's beneficial to the religious organization. It seems to be the philosophy there.
Liz Cavell:
You know what's interesting, just as you mentioned, um, Espinoza and other cases from 2020, I was reminded that I think Bostock came out in 2020.
Rebecca Markert:
It did. I was just gonna say that. I was just thinking about that too.
Liz Cavell:
I wonder if we should discuss, how did we square the bo stock decision with this decision in our Lady of Guadalupe and how did they interact or do they,
Rebecca Markert:
When Bostock came down and everybody was celebrating, rightly so, this, this win for civil rights. I told everybody, I'm still holding my breath though, because though this seems like a great move by the Supreme Court and you know, justice Gorsuch was the one who wrote that decision. I was still holding my breath because we had known that our Lady of Guadalupe was argued and we were awaiting that decision yet too.
So even though there was a victory there, it was going to be immediately narrowed in a way through our Lady of Guadalupe and we just sort of knew that that was gonna be cabined. It was, yes, you can't discriminate on the basis of sex or on the basis of sexual orientation, but if you're a religious organization, you're probably gonna be able to.
Liz Cavell:
Right. So just to explain, the Bostock decision really, really quickly had to do with, um, statutory interpretation, right? Alison, right? Sure.
Alison Gill:
The Bo doc decision was an interpretation of Title VII, which prevents employment discrimination, the basis of sex and the way it was framed and the language, you know, there's no way to read employment discrimination, the basis of sex without sweeping in things like sexual orient orientation, gender identity and gender expression, which a Bostock decision made very clear. But they also did say that this is not looking at possible religious exemptions to that.
And it's sort of limited in ruling in some ways. They leave things, some things on the table. And I think it's a really good point to say that, you know, they're both doing this positive thing around these three categories, sexual orientation, gender identity, and gender expression. And at the same time, they're sort of protecting religious entities from the decision.
Liz Cavell:
Right? It just, it feels just like this neat trick where it's like window dressing for how really awful and sweeping what they did in Our Lady of Guadalupe is it takes so much of the effect of the Bostock decision and that interpretation of Title VII, it takes so much out of that to say, but it remains to be seen for another day whether or not the ministerial exception would protect religious employers from everything I just said in this opinion.
That's basically kind of how it left the question, which is means to say us, if there was a sex discrimination claim brought by a church or religious org employee or like a Catholic school teacher who was LGBTQ under Title VII, that would probably be barred by the ministerial exception under Our Lady of Guadalupe, despite what Bostock had to say about the interpretation of sex in that statutes.
Alison Gill:
And that goes beyond the limited exemption I spoke about earlier in Title seven, which only allows discrimination on the basis of religion. Right? Right. So it's, it's broader. And this, the court has said, in other cases, you can't read that Title VII exemption and use religion as a pretext for other categories. So like sex for example, or disability. But the exemption is broader, at least you know where it applies. And if they're gonna let it apply in its unrestricted way, then it's gonna swallow the rule.
Rebecca Markert:
It's just amazing to me because I think 2022 was such a banner year for civil rights attorneys, but going back, like you said Liz, and looking at 2020 and all of the cases that we were filing amicus briefs form, we were watching and analyzing on top of everything that was happening in 2020, that was also just a crazy year. And of course we couldn't remember everything that was happening because not only was it hard for attorneys like us working in religious liberty issues, but we were also in the middle of a pandemic and the world was on fire in so many different ways. I
Liz Cavell:
Know you forget like how bad some of these terms were. Yeah, because you, cuz we didn't know how bad it was gonna get
Rebecca Markert:
I mean, I think we did know, but we just, you know, like we were in survival mode then. And now I think we're sort of outta that fog.
Alison Gill:
Just like every one of these podcast episodes, I think we have to now call for a court reform, right.
Liz Cavell:
Court reform. I know, right? Critical.
Alison Gill:
That's cancer and we need court reform.
Liz Cavell:
Right? It's basically like the only unofficial sponsor of our podcast is brought to you by court reform.
Rebecca Markert:
But I think it's also important that we do episodes like these because, um, the ministerial exception is not something that people ordinarily understand. It's not in common parlance. People aren't just always talking about, you know, this exception and like the South Carolina Denial of Care bill. I mean it's snuck in all of these different ways when you're also looking at other very serious issues. And so I think it's important that we give this one-on-one and explain why it matters, and how it's impacting our laws and our lives because it is something that people should be taking a look at, even in their own state legislatures, at the federal government, in their local laws as well.
Alison Gill:
And when making employment decisions, right, and
Rebecca Markert:
When making employment decisions. Yes.
Liz Cavell:
Right. Um, it's so cynical. I hate how every episode we do is basically it's worse than you think <laugh>
Rebecca Markert:
<laugh>.
Liz Cavell:
But I do feel like the ministerial exception is really emblematic of that concept of like, there's all these little insidious whole bodies of law going on that most people are not really reading about or hearing about that are working in concert with all of these other, we talked about the 3 0 3 case and the anti-discrimination public accommodations law. That whole legal crusade is working to eviscerate public accommodations, protections.
And we have this whole conservative religious legal movement to undermine all of these gains across the board is so much broader and more sophisticated than most people know. And I think it's really important to kind of talk about some of these doctrines that are making these big cases that are making sweeping changes to the way that just everyday people we know that work at a Catholic hospital or that work for a religious college or university, and they're seriously affected by these like boring weedsy legal doctrine that come out in these cases that most people aren't really hearing or reading about. And it's all of a piece with this movement to undermine our civil rights.
Rebecca Markert:
And yes, it is worse than, you know, but there is definitely power in education. This is sort of a “the more you know episode” you'll be able to fight back. So I think that's it for our episode today. I'm Rebecca Markert with the Freedom From Religion Foundation.
Alison Gill:
I'm Alison Gill with American Atheists.
Liz Cavell:
And I'm Liz Cavell. Thanks for listening.
Rebecca Markert:
We Assent is a joint production of the Freedom From, Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
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