BRIAN BASHAM, HOST: It’s Monday morning and we’re back at it for another week of The World and Everything in It. Today is the 18th of May, 2020. Good morning to you, I’m Brian Basham.
NICK EICHER, HOST: And I’m Nick Eicher. Morning to you, Big Bash.
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EICHER: All right, well, the Supreme Court wrapped up oral arguments last week. Not in the usual way, of course. The justices hashed out the final 10 arguments over the phone. We will have all of those for you in the fullness of time.
Now, we have Mary Reichard cloistered away hard at work on the Legal Docket podcast that’s still a few months away. But she did take some time to prepare a report on an important religious-liberty case heard last Monday.
Today, you’ll hear about that case. At issue here is a legal doctrine known as the “ministerial exception.”
What that does is allow religious employers some measure of protection from lawsuits by employees considered ministerial employees.
Our legal-affairs correspondent Mary Reichard takes it from here.
MARY REICHARD: That idea—the idea of the ministerial exception is rooted in the religion clauses of the First Amendment of the U.S. Constitution. You know, the one that says Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.
That includes personnel decisions within religious organizations.
A case decided in the year 2012 helped to clarify and strengthen the concept. It’s called Hosanna Tabor and it involved an employment dispute between a Lutheran school and a teacher.
Listen to Chief Justice John Roberts deliver part of that opinion:
ROBERTS: The interest of society in enforcing employment discrimination laws is plainly important, but so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carryout their mission. When a minister, who has been fired, sues her church, alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The Church must be free to choose those who will guide it on its way. Our decision is unanimous.
In other words, the First Amendment allows religious institutions to hire and fire ministers without government interference.
In Hosanna Tabor, several factors helped to broaden the definition of “minister.” The distinction is hugely important because it protects religious employers’ ability to put the right people in the right places to carry out its religious mission.
That’s the ministerial exception and modern anti-discrimination law doesn’t apply to it.
Trouble is, nobody defined what a “minister” is in all circumstances for all time.
And that’s the crux of the problem in two consolidated cases before the Supreme Court now.
Justice Samuel Alito would prefer to jettison the phrase “ministerial exception” altogether. Here he addresses lawyer Jeffrey Fisher who argued it’s for the courts to decide who’s a minister and who isn’t.
ALITO: Do you appreciate that the very term, minister, treats different religions differently? It is a predominantly Christian Protestant term. And as you apply it to other religions, it becomes — its application becomes less and less clear.
Here are the facts.
Two Catholic schools in California each fired a school teacher. One of the teachers said it was for reasons of age, and thus the firing was for age discrimination. The other said her school fired her because she had cancer, and that violates the Americans with Disabilities Act.
The schools denied those contentions, but no matter what, the teachers fell under that “ministerial exception.” Meaning, the teachers could not sue the schools for discriminatory practices, because they were de facto “ministers” for the schools.
And that’s how the school’s lawyer, Eric Rassbach, opened his case.
RASSBACH: In this country, it is emphatically not the province of judges, juries, or government officials to decide who ought to teach Catholic fifth graders that Jesus is the son of God or who ought to teach Jewish preschoolers what it means to say: Hear, O Israel, the Lord your God, the Lord is one. And at bottom, that’s what these cases are about: who controls who teaches the faith to school children.
But Justice Ruth Bader Ginsburg wondered just how broadly that should be applied.
GINSBURG: Two questions. One is, who among the religious schools’ employees are not ministers? The second question is … You do not have to be Catholic to be a fifth or sixth grade teacher. How can a Jewish teacher be a Catholic minister?
Rassbach replied that not every employee is a minister in a religious school.
He got into some trouble in this exchange with Justice Elena Kagan. She listed hypotheticals in rapid fire and asked him to say if the person is a minister, and therefore fits into that ministerial exception.
KAGAN: Okay. A math teacher who was told to embody Jewish values and infuse instruction with Jewish values.
RASSBACH: If it’s that alone, probably not. But it really depends on how that …
KAGAN: Okay, a nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs.
RASSBACH: I think a nurse doing that kind of counseling and prayer may well fall within the exception…. yes.
KAGAN: A press or a communications staffer who prepares press releases for a religious institution of all kinds that they need?
RASSBACH: That should fall within it…
KAGAN: Ok, a cook who’s actually not Jewish but who prepares kosher compliant meals for children at a Jewish school?
RASSBACH: Uh, no.
Lawyer for the teachers, Jeffrey Fisher, argued that a flat-out immunity from discrimination lawsuits for a whole category of employees is the wrong way to go. Some employees, yes; others, absolutely not.
FISHER: It is enough to give the schools in this case the ability to hire, fire, discipline, and otherwise set the terms and conditions of employment according to their religious values. And it is too much and it would blow a hole in our nation’s civil-rights laws to say that categorical immunity applies, and so schools can pay people different amounts, use race, sex, other private characteristics even when they have nothing to do with the religion and the religious values at stake.
Justice Clarence Thomas turned the tables in this question to Fisher, again, lawyer for the teachers.
THOMAS: Mr. Fisher, first just a general question. Would exactly what these teachers were doing be a violation of the Establishment Clause if they did it in a public school?
FISHER: Well, Justice Thomas…
Ooh, Thomas was on to something and I can hardly wait for Justice Thomas to develop his thinking in writing. But Fisher did end up saying that, yes, a public-school teacher praying and worshiping would be too far.
Assistant to the Solicitor General Morgan Ratner argued for the federal government in support of the schools. She said job titles can’t be what determines whether someone’s a minister. A better measure is job duties.
But several justices saw problems with this. Lawyers on both sides advocated to slice and dice jobs to figure out if an employee is or isn’t a “minister” for purposes of the ministerial exception.
Listen to Justice Neil Gorsuch first, then Justice Kagan:
GORSUCH: You’re asking a secular court to make that judgment on the basis of our judgment that their activity with respect to religion is de minimis. I can easily see a school in which everybody takes a pledge that everything they do is to help teach these kids to be part of the faith. The next case is going to be a school in which a janitor takes a pledge, or the school bus driver or the coach, and they all believe sincerely that they are ministers, and you’re going to have us tell them, no, your active duties are too de minimis?
KAGAN: Well, where do we draw that line then? I mean, suppose that I think that the full-time religion teacher is protected by this exemption. Then I think Justice Alito raises a fair point here. It’s like, well, in an elementary school, maybe you have to teach some other subjects too, so maybe it’s a half-time religious teacher or maybe it’s a quarter-time. Where do we draw that line?
Chief Justice Roberts pointed out it’d be easy for schools to game the system by labeling every worker as “minister.”
And really, anyone who teaches children knows concepts are “caught” as much as they are “taught.”
I know in my own elementary school years in a public school, it was the janitor who made the biggest impression on with his gentle, honest, and kind demeanor.
So where do we draw that line? Perhaps in favor of keeping government from entangling itself with matters of First Amendment protections. Still, people who seek employment in religious institutions should be aware of this and choose their life’s work with full knowledge of what’s protected and what isn’t.
I doubt that this will be a unanimous ruling as was Hosanna Tabor. But I do predict a win for the schools, and that the teachers will not get to proceed with their discrimination cases.
And that’s this week’s Legal Docket.