Thursday, July 9, 2020

SCOTUS: Ministerial exception... not just for "ministers"

Yesterday, the Supreme Court issued its decision in Our Lady of Guadalupe Sch. v. Morrisey-Berru. The bottom line? 
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.
In other words, under the "ministerial exception," the Catholic schools in these consolidated cases could not be sued by their teachers for employment discrimination. 
The majority opinion focused primarily on what the ministerial exception test is not. The Court emphasized that the factors relied upon in a prior ministerial exception case, Hosanna-Tabor, are not a "rigid formula" and courts should not require them like a "checklist." Similarly, the employer need not literally title the employee a "minister" (and the Court declined an invitation to jump in to identifying who is a "minister" in other religions that do not use that term, or use it differently). 

What does matter?
What matters, at bottom, is what an employee does . . . . 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. 
One of the major disputes between the majority opinion and the dissent is whether the majority was resolving issues of fact, and viewing them in a light most favorable to the employer. This highlights a difficulty with the ministerial exception. The point is to spare religious organizations from government interference. 

But, the test seems to require factual determinations. Traditionally, courts utilize the discovery process to generate evidence, and if there is a dispute regarding material facts, they are resolved at trial. Under this model, religious organizations could still get sued, endure costly discovery, and possibly even a costly trial subject to a determination by the jury. That would pretty much defeat the purpose of the exemption. It is still not clear (to me) to what extent courts should defer to the assertions from the employers in these cases. 

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