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The Court missed an opportunity to narrow the category of employees whom the law regards as ministers.
Yesterday, the Supreme Court may well have made me a Catholic minister. It wasn’t wholly unexpected, but it still came as a surprise to me— a former Catholic, an Episcopalian, and a gay man whose marriage the Catholic Church views as partaking in “intrinsic evil.”
The Court’s decision in two cases involving Catholic schoolteachers from Los Angeles doubled down on what judges and lawyers have come to call the “ministerial exception.” Since the 1970s, courts have immunized religious employers from some federal antidiscrimination laws on the basis that for the state to regulate who can represent a religious institution as its minister violates the First Amendment. In certain disputes between a religious employer and employees dubbed “ministers,” federal laws that prohibit discrimination do not apply.
Yesterday’s ruling did not create the ministerial exception, but the Court missed an opportunity to narrow the category of employees whom the law regards as ministers. Neither of yesterday’s cases featured a theological dispute, nor an officially ordained or commissioned religious leader. Both plaintiffs were laywomen. One, Agnes Morrissey-Berru, alleged she was discriminated against because of age; the other, Kristen Biel, claimed that her school refused to renew her contract on account of a disability—the cancer diagnosis to which she succumbed while her case was pending.
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Writing for the Court, Justice Samuel Alito repeatedly reiterated what the justices had said unanimously in 2012: There is no “rigid formula for deciding when an employee qualifies as a minister.” Courts should look at “all relevant circumstances,” but “[w]hat matters, at bottom, is what an employee does.” In the school context, if a religious school thinks an employee is involved in “educating young people in their faith, inculcating its teachings, and training them to live their faith,” that employee is now clearly a minister in the eyes of the law. That she has no ministerial title, education, or self-understanding appears to be no bar. That he does not even belong to the employer’s religious tradition, equally not a barrier.
The Court’s 7–2 decision thus potentially sweeps into the ministerial category, and thereby exempts from antidiscrimination protections hundreds of thousands of people who likely have never considered themselves ministers. Not just schoolteachers, but nurses in religiously affiliated hospitals and faculty like me at colleges and universities with religious roots. We can now be fired, without recourse to federal law, for traits completely unrelated to religion, including race, sex, age, and disability.
There are important values on the other side of this debate. If the First Amendment’s guarantee of disestablishment means anything at all, it must mean that the government cannot tell a religious institution whom to ordain in the traditional—many Christians would say the sacramental—sense. But in seeking to preserve that principle, and in working to avoid almost all entanglement between government and religion on employment matters, the Court has cast a net so wide it affords religious traditions a virtually blanket license to discriminate, even with regard to race. (Two justices, Clarence Thomas and Neil Gorsuch, would have gone even further, affirming that courts have no business even reviewing an employer’s judgment as to who is a minister.)
The predicament of LGBT employees of religious institutions is especially tight. Last month, the Court vindicated the rights of LGBT workers in secular settings, holding that existing laws cover discrimination on the basis of sexual orientation and gender identity. But the ministerial exception the Court affirmed yesterday immunizes religious employers. LGBT employees working in roles that judges find fit the Court’s fuzzy definition of “minister” will continue to lack protections against discrimination. Even for those who fall outside the ministerial category, the situation is not much better. A statutory exemption that Congress enacted in 1972 permits religious organizations to fire any employee for religious reasons, which can include theological opposition to marriage equality and LGBT rights.
The Court has relinquished to the consciences of religious leaders the prerogative to hire and fire many of their employees as they see fit. I’m very fortunate to work at a Jesuit university with a robust nondiscrimination policy and a commitment to building a campus community that reflects the diversity of our society. When my husband and I married five years ago, our university wished us “many blessings.”
But many others, and not only LGBT individuals, are far less fortunate. As Justice Sonia Sotomayor explained in her dissent, the Court risks denying the full protection of the law to thousands upon thousands of citizens, “permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.” It’s now up to religious employers to refuse to do what the law permits, and up to religious believers to demand that their leaders employ just and inclusive employment policies.
