Constitutional Law - Supreme Court Expands Ministerial Exception to Lay Teachers at Catholic Elementary Schools - Our Lady of Guadalupe School v. Morrissey-Berru.

• Author: Ferris, Kelsie A.

Constitutional Law--Supreme Court Expands Ministerial Exception to Lay Teachers at Catholic Elementary Schools--Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

The First Amendment to the United States Constitution protects religious institutions from governmental control over their free exercise of religion but does not prevent the government from enacting and enforcing generally applicable laws that incidentally impact religion. (1) These include federal laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA), all designed to eradicate employment discrimination on the basis of race, color, national origin, religion, sex, disability, and age. (2) To further protect religious institutions' autonomy in certain employment decisions, courts have expanded preexisting statutory exemptions by creating the "ministerial exception," which operates as a constitutional bar on the adjudication of employment discrimination claims brought against religious employers. (3) In Our Lady of Guadalupe School v. Morrissey-Berru, (4) the Supreme Court of the United States considered whether the ministerial exception applies to lay teachers at religious schools who do not have religious titles or training and who primarily teach secular subjects. (5) The Court held that the exception applied to two such teachers, drastically broadening its scope and discarding the Court's previous totality- of-the-circumstances approach in deciding when the exception applies. (6)

Our Lady consolidates two employment discrimination claims brought by lay fifth-grade teachers, Agnes Morrissey-Berru and Kristen Biel, against their respective Catholic school employers, Our Lady of Guadalupe School (OLG) and St. James School (St. James). (7) Both teachers held degrees in secular subjects and lacked significant religious experience or training, and while OLG preferred Catholic teachers, St. James did not deem religious background a hiring prerequisite. (8) Biel and Morrissey-Berru taught mostly secular subjects; per curriculum requirements, however, they also taught religion using the schools' assigned workbooks. (9) The schools also expected the teachers to pray with students, bring them to Catholic Mass, and teach them about Mass and other religious practices. (10) Additionally, Morrissey-Berru's and Biel's employment contracts stated that their employers expected the teachers to perform their duties and responsibilities in accordance with the employers' missions of developing and promoting Catholic faith-based communities and evaluated each teacher's performance based on religious standards. (11)

In 2014, shortly after Biel notified St. James's principal that she was taking a leave of absence for breast cancer treatment, the school declined to renew her annual employment contract. (12) The school justified this decision by alleging Biel failed to maintain an orderly classroom. (13) Similarly, OLG demoted Morrissey- Berru, who was in her sixties at the time, and later declined to renew her contract, claiming she was not adequately implementing the school's new academic program. (14) Biel and Morrissey-Berru both filed discrimination charges with the Equal Employment Opportunity Commission (EEOC), received right-to-sue letters, and then filed suit against their former employers. (15) In each case, the United States District Court for the Central District of California granted summary judgment in favor of the school, finding that the ministerial exception applied to the teachers because their job duties involved conveying and carrying out the schools' Catholic missions, and, consequently, the teachers were barred from suing the schools for discrimination. (16) Both teachers then appealed to the United States Court of Appeals for the Ninth Circuit, which reversed the District Court's decisions in both cases. (17)

On review of St. James's appeal, the Ninth Circuit determined that Biel did not qualify for the ministerial exception because she did not have adequate religious credentials, training, or background. (18) Likewise, the Ninth Circuit held that the exception did not apply to Morrissey-Berru because, although she had some religious responsibilities, she lacked formal religious training and a religious title, and did not hold herself out as a minister or religious leader. (19) OLG and St. James appealed to the Supreme Court, which granted certiorari and consolidated the two cases. (20) The Court held that the ministerial exception applies to employment discrimination claims against a school with a religious mission when brought by a lay teacher whose responsibilities include "educating and forming students in the faith." (21)

The First Amendment contains two separate but interrelated religious protections that are commonly referred to as the Free Exercise Clause and the Establishment Clause; the former protects the free practice of religion, and the latter prevents the government from atively involving itself in religious activities. (22) There are two lines of Free Exercise Clause precedent, which separately address individual free exercise of religion and church autonomy. (23) The individual- free-exercise precedent involves judicial review of laws that restrict religiously motivated conduct, and courts typically uphold such laws when their governmental purpose outweighs the burden on individuals' free practice of religion. (24) The church autonomy doctrine prohibits governmental--including judicial-- interference in a church's decisions concerning certain internal affairs, such as control over church property. (25) The constitutional justifications for the ministerial exception are rooted in both the Free Exercise Clause and the Establishment Clause; nevertheless, most courts focus on the Free Exercise Clause-- specifically the church autonomy doctrine--as the Supreme Court did in its landmark Hosanna-Tabor decision. (26) Hosanna-Tabor also clarified that "[w]hen a minister who has been fired sues her church alleging that her termination was discriminatory," the burden on free exercise categorically outweighs the government's "undoubtedly important" interest in enforcing employment discrimination laws. (27)

Although courts universally agree on the ministerial exception's existence, they disagree on how to apply it. (28) Procedurally, the Court's dismissal of the claim in Hosanna-Tabor implicitly clarified that the exception operates as an affirmative defense against alleged discrimination, meaning courts can dismiss a case on summary judgment even when a defendant religious institution admits to engaging in discrimination. (29) When deciding to which employment relationships the exception should apply, the courts in the foundational ministerial exception cases expressly limited the exception to the "church-minister relationship," but other circuit courts later expanded its coverage to the relationship between religious institutions and non-minister employees. (30) To determine the exception's scope, a number of circuits adopted the "primary duties test," which focuses on the degree to which the employee's role serves religious functions. (31) Some circuits opted for a case-by-case analysis, while others used a judicial balancing test similar to those in the individual-free-exercise cases, through which courts emphasized the importance of enforcing employment discrimination laws in the education sector to promote diversity in schools' teaching staff and discourage the perpetuation of discriminatory attitudes among students. (32) In Hosanna- Tabor, the Court declined to set a "rigid formula" and instead used a factor-based approach that focused on the teacher's formal title, their substantive religious training, the teacher's own use of their title, and the religious functions they performed for the church-employer. (33)

After Hosanna-Tabor's narrow holding, courts were left without conclusive guidance on how and to whom the ministerial exception should apply. (34) The Court's frequent use of "church" and "minister" in the opinion suggests the majority was leaning toward adopting the original church-minister relationship standard and rejecting the primary duties test, but based on Justice Alito's two Justice concurrence focusing on religious functions, it is unlikely that all Justices agreed. (35) Various circuit courts, district courts, and commentators have followed Justice Alito's lead and argued for broader application of the exception that embraces and expands the primary duties test. (36) Others have called for a narrower ministerial exception limited exclusively to the church-minister relationship, or an ad hoc approach that examines the religious nature of the employee's position. (37) Most commentators agree that the test should yield consistent results, which is particularly important in light of both the harsh outcome when the exception applies, and the potential societal impacts of an overbroad or inconsistent application of the exception. (38)

In Our Lady, the Court first discussed the facts of each case, focusing on the teachers' job duties and the schools' religious missions and expectations of their employees. (39) The majority then began its legal analysis by reaffirming the ministerial exception's constitutional basis and stressing that the exception's scope is not limited to ministers. (40) When examining the Hosanna-Tabor decision, the Court noted that Hosanna-Tabor's historical discussion focused primarily on government control over ministerial appointments, and broadened this discussion to include colonial restrictions on religious teachings. (41) The majority then discussed the four factors the Hosanna-Tabor Court deemed relevant to applying the ministerial exception in that particular case, and it reaffirmed the Court's rejection of a rigid test for deciding when...