EMPLOYMENT LAW - INTERSECTING IDENTITIES & IDEOLOGIES, NONDISCRIMINATION, AND THE FIRST AMENDMENT MINISTERIAL EXCEPTION DEFENSE - DEWEESE-BOYD V. GORDON COLLEGE, 163 N.E.3D 1000 (MASS. 2021).

• Author: Austen, Margaret R.

When fundamental legal principles such as religious freedom and discrimination intersect, a great tension emerges. (2) The ministerial exemption--an affirmative defense under the First Amendment--sits at this intersection, barring employment discrimination claims against religious institutions by their ministerial employees. (3) In DeWeese-Boyd v. Gordon College, (4) the Supreme Judicial Court of Massachusetts ("SJC") applied recent Supreme Court precedent to clarify which employees are considered ministers under the exemption. (5) The SJC ultimately found that the plaintiff, Professor Margie DeWeese-Boyd, was not a minister, and, therefore, her employment discrimination claims against defendant, Gordon College, were not barred by the exemption. (6)

Gordon College is a Christian liberal arts college located in Wenham, MA, a suburb about twenty-five miles north of Boston. (7) In 2011, the late President R. Judson Carlberg resigned after serving nearly twenty years as Gordon's president and was succeeded by D. Michael Lindsay. (8) With this leadership transition came many changes within the Gordon community, including the founding of OneGordon, a community of lesbian, gay, bisexual, transgender, queer (LGBTQ) and allied alumni, students, faculty, and staff, "committed to affirming and supporting people of all sexual orientations, gender identities, and gender expression." (9) In 2014, following the Supreme Court's decision in Burwell v. Hobby Lobby Stores, (10) President Obama signed an Executive Order forbidding any federal contractor from discriminating on the basis of sexual orientation or gender identity. (11) In response, Gordon's President Lindsay, along with many other evangelical leaders, submitted a letter to President Obama requesting an exemption so religious institutions receiving federal funding can remain selective in their hiring. (12)

As a result of the letter to President Obama, community partners, including the cities of Salem and Lynn, formally cut ties with Gordon. (13) In response, Gordon's lawyers sent a memo to the Lynn Public School Committee defending President Lindsay's First Amendment rights, worsening tensions between the school and the surrounding communities. (14) The following academic year, tenured Philosophy Professor Lauren Barthold penned a letter to the editor of The Salem News criticizing Gordon's approach to homosexuality; as a result, Barthold was threatened with termination and subject to discipline by the administration. (15) Barthold filed and ultimately settled a civil rights lawsuit claiming employment discrimination. (16) Shortly after Barthold's suit was filed, the word "minister" was added to the Gordon faculty handbook--an addition that garnered serious opposition from faculty. (17)

Prior to joining Gordon College as a professor, DeWeese-Boyd received a master's degree in General Theological Studies from Covenant Theological Seminary in St. Louis and performed mission work in the Philippines. (18) DeWeese-Boyd first contacted Gordon about a tenure track faculty position in the Social Work department in February 1998, submitting an application for employment in March. (19) In her application, DeWeeseBoyd acknowledged her personal agreement with Gordon's Statement of Faith, agreed to comply with the Statement of Life and Conduct, and affirmed her understanding of the basic responsibilities of a faculty member. (20) In June 1998, Gordon offered DeWeese-Boyd a "tenure track faculty position," hiring her as an Assistant Professor of Social Work. (21) While at Gordon, DeWeese-Boyd participated in religious services, convocations, and religious gatherings on campus with students and attended a local church alongside Gordon students. (22)

DeWeese-Boyd was promoted to Associate Professor in 2004 and approved for tenure in September 2009. (23) In 2016, DeWeese-Boyd applied for promotion to Full Professor and the Faculty Senate unanimously recommended her to Provost Janel Curry. (24) In February 2017, after Provost Curry declined to recommend DeWeese-Boyd for promotion to President Lindsay and the Board of Trustees, DeWeese-Boyd filed her employment discrimination suit. (25) Gordon raised the ministerial exception as a defense, but the Essex County Superior Court ruled that the ministerial exception did not apply, denied Gordon's motion for summary judgment, and granted DeWeese-Boyd's cross-motion. (26) Affirming the lower court's judgement, the SJC held that DeWeese-Boyd's responsibility to integrate her Christian faith into her teaching and scholarship was not sufficient to make her a minister, rendering the ministerial exception inapplicable. (27)

The First Amendment to the U.S. Constitution includes the Establishment Clause, which prohibits Congress from making any law "respecting an establishment of religion," and the Free Exercise Clause, which prohibits Congress from interfering with "the free exercise thereof." (28) The "ministerial exception," which prohibits most employment-related lawsuits against religious organizations, was created by courts under the First Amendment's Establishment and Free Exercise Clauses to prevent state interference with the governance of churches. (29) The Supreme Court recognized the ministerial exception for the first time in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission ("Hosanna-Tabor"), (30) when it considered whether-the defendant employer-church violated the Americans with Disabilities Act by firing the plaintiff employee after becoming sick. (31) The Supreme Court concluded that the ministerial exception was not limited to hiring and firing decisions made for religious reasons, that the plaintiff employee functioned as a minister, and that the ministerial exception, therefore, applied. (32) Building on Hosanna-Tabor, the Court in Our Lady of Guadalupe School v. Morrissey-Berru ("Our Lady of Guadalupe") (33) expressly declined "to adopt a rigid formula for deciding when an employee qualifies as a minister," but emphasized that the key inquiry is what the employee does. (34)

Before applying the ministerial exception, a court must determine: (1) whether the defendant organization is a religious institution; and (2) whether the plaintiff employee qualifies as a "minister." (35) While the Supreme Court has not established a rigid formula for this inquiry, lower courts provide helpful precedent. (36) The classification of a defendant organization as a "religious institution" does not merely depend on whether it is a church or sect, but rather whether it is a religiously affiliated entity. (37) This means that institutions such as schools, hospitals, corporations, and retirement homes may avail themselves of the ministerial exception. (38)

When determining whether a plaintiff-employee is a minister for purposes of the ministerial exception, the primary question is "what the employee does" at the institution. (39) Courts, therefore, utilize a functional test, focusing on the function of the position rather than ordination status of the employee. (40) Courts will consider the employee's title, trainings received, whether they were ordained or commissioned, and whether the institution or the employee considered the employee a minister within the institution. (41) Despite this flexibility, courts have emphasized the serious consequences of the exemption and have demonstrated their willingness to engage with the tension between religious freedom and employment discrimination. (42)

In DeWeese-Boydv. Gordon College, the SJC applied the Supreme Court's findings from Our Lady of Guadalupe and took seriously the consequences of an overly broad analysis. (43) The SJC's decision also emphasized that the existence and role of the ministerial exception is to prohibit "government interference with employment relationships between religious institutions and their ministerial employees[.]" (44) Applying the Supreme Court's precedent, the SJC first, for the purposes of the exception, found Gordon a religious institution due to its "obvious religious character." (45) While Gordon is not a traditional church nor organized sect, the SJC found that Gordon's "clear commitment to Christian principles, as well as its historical religious roots" satisfied the religious institution prong of the exemption. (46) Therefore, the SJC was not persuaded by DeWeese-Boyd's argument that Gordon's "'primary commitment' is to provide a liberal arts education" and thus is not a religious institution. (47)

In the second prong of its analysis, the SJC found DeWeese-Boyd not a minister and therefore held the ministerial exception does not bar her claims. (48) The SJC reasoned that DeWeese-Boyd's role was not that of a minister because she did not "lead students in devotional exercises or chapel services" and she did not "teach classes on religion, pray with her students, or attend chapel with her students[.]" (49) Additionally, based on DeWeese-Boyd's title and training alongside Gordon's Faculty Handbook, the SJC found that DeWeese-Boyd was not held out as a minister by the school or herself. (50) The SJC compared DeWeese-Boyd's role as a professsor with the specific and sectarian religious instructions in Hosanna-Tabor and Our Lady of Guadalupe, and thus remained unconvinced by Gordon's argument that DeWeese-Boyd's responsibility to integrate her Christian faith into her teaching and scholarship asserted that she was a minister. (51) The SJC, engaging in a subjective analysis comparing the particular facts of the present case with available precedent, held that although Gordon is a religious institution, DeWeese-Boyd was not a minister and that the ministerial exception did not bar her claims. (52)

DeWeese-Boyd v. Gordon poignantly demonstrates the tensions and consequences courts encounter when...