What the Supreme Court Needed to Hear About Catholic Institutions

COMMENTARY: It is possible to envision a 5-4 decision in favor of the Catholic schools, but all the same, the arguments missed a crucial point.

The U.S. Supreme Court is seen in Washington, D.C., on May 4.
The U.S. Supreme Court is seen in Washington, D.C., on May 4. (photo: Photo by SAUL LOEB/AFP via Getty Images)

The Supreme Court heard oral arguments Monday in two consolidated cases concerning the right of Catholic elementary schools to decide who can teach there: Our Lady of Guadalupe School v. Berru, and St. James School v. Biel. Arguing on behalf of the schools was an attorney with the Becket law firm — a prominent religious liberty firm in Washington, D.C. — and also an assistant to the U.S. solicitor general, Morgan Ratner, who had obtained permission from the Court to speak in favor of the schools.

It is possible to envision a 5-4 decision along the usual divisions on the Court in favor of the Catholic schools, but all the same, the argument was disappointing. Here I should disclose my prior assumptions — as a mother who sent her children to Catholic schools, and as an amateur theologian but professional religion clauses scholar.

I didn’t have time to write an amicus brief (I was too busy with brief on the Little Sisters’ case argued last week), but if I had, I would have argued that Catholic institutions — schools especially but not exclusively — are groups whose primary mission is to witness to Christ. Virtually every employee is responsible to transmit this in their work, as well as in their interactions with clients and other employees. Yes, each Catholic institution is channeling this witness toward particular services: education, health care and social services mainly. They are responsible to deliver what the law requires and customers expect in the way of expert services. But their common motivation, their goal and their mission-charge, is to transmit Christ.

It is unthinkable to me that the state, as distinguished from the religion, would have the final word on who the religious institution hires to witness to Christ. Yet this is what the lawyers for the fired employees argued.

A brief background is necessary on the seminal case that held that church employees may not successfully pursue employment discrimination lawsuits against their employers if they are held to be “ministers” of the faith. In the 2012 Hosanna Tabor case, the Supreme Court unanimously held that those persons employed by religious institutions to “communicat[e] the faith,” “serve as the very embodiment of its message” and “express those views … that it intends to express,” are “ministers,” and as such, may not claim “employment discrimination” by their employers when they are fired. It is not necessary to be ordained to be a minister, according to the Hosanna Tabor opinion. Instead, persons are ministers if they play a role in transmitting the faith.

Hosanna Tabor is a piece of a larger federal constitutional area called “church autonomy” doctrine. It holds that, as a matter of both the Free Exercise and Establishment clauses of the U.S. Constitution, the state has no business meddling in a religion’s affairs. Hosanna Tabor was an application of this broader doctrine to the particular situation of employees who function as “ministers” within their faith traditions.

In the cases at issue Monday, the Ninth Circuit Court of Appeals had previously ruled that neither of the Catholic elementary school teachers were “ministers,” according to Hosanna Tabor. That court went out of its way to minimize the religious character of the duties of teachers who taught religion every day, led students in prayer, accompanied them regularly to Mass, and promised in their teacher contracts to infuse Christ in their daily work and to model the faith to students. Instead, the court of appeals focused on the teachers’ titles (“teacher” vs. “minister”) and their lay versus clerical status. It characterized their teaching and praying as reciting words crafted by others, and not as faith transmission.

During oral arguments, Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Samuel Alito appeared to make stronger arguments on behalf of the schools’ rights, than were made by either of the lawyers for the schools. They worried that the tests those attorneys proposed to distinguish ministerial from non-ministerial employees invited the Court to substitute its judgment for religions’ judgments about which employees were responsible for transmitting the faith. And they indicated that allowing judges to make such religious decisions amounted to, at best, excess “entanglement” of church and state, and at worst, a state establishment of religion.

On their part, again and again, the schools’ attorneys suggested that only those employees with (court-adjudicated) “important religious functions” or “more than de minimis” religious functions could qualify as ministers. They seemed willing to label most (but not all) teachers as “ministers.” But they appeared to exclude the math teacher who brought religion into a discussion of math, or the soup kitchen employee who leads grace, or the cook working to ensure religion-compliant meals in the school cafeteria.

Counsel for the fired teachers sensed the unworkability of these line-drawing exercises, and exploited it in his arguments before the Court. So he sought to offer the Court an easy way out: limit the category of “ministers” to a narrow group of persons, ideally in his view, employees who were just like the Lutheran teacher (Cheryl Perich) held to be a minister in the Hosanna Tabor case.

Counsel therefore insisted that ministers have to be able to show extensive training, and nearly or totally exclusively religious duties. He pressed the Court to hold that title was important: “minister.” Kavanaugh and others pushed back on this narrow view with questions about the vast number of religions in the United States, with their very different views and practices regarding who passes on the faith.

Counsel for the teachers also pressed a theme seen in last week’s Little Sisters of the Poor litigation: They characterized religious institutions’ demands for final say over employees as a request to hurt people with legal impunity. Again and again, the fired employees’ attorney referred to the “hundreds of thousands” of lay teachers who would presumably be subjected to any harm the religious institution wished to dole out, without any recourse to the law.

It appeared that Justices Ruth Bader Ginsburg, Sonia Sotomayor, especially, and — to a lesser extent — Elena Kagan, were susceptible to this argument. They offered their own parade of horribles. And they appeared to suggest that judges should be permitted a deep dive investigation into the hiring and firing of the vast majority of employees at religious institutions, to discover the religious employers’ “real reasons” for decisions involving now-disgruntled employees. This would require every religious employer to make a theological case about why such and such a disgruntled employee was or was not hired or retained; and judges would evaluate the plausibility of their arguments.

But of course, this is precisely what the Establishment Clause prohibits: the state making religious determinations about which persons religious institutions employ to transmit the faith.

If I had the time to write an amicus brief in this case, I would have made a robust showing about the inescapably communal character of every Catholic institution, as a believing community whose members are called to witness to the living Christ to one another and all onlookers. I would have quoted Pope Francis’ ringing advice from his first homily after his election about Catholic institutions: “If we do not confess to Christ, what would we be? We would end up a compassionate [nongovernmental organization].”

I would have quoted Pope Benedict XVI’s advice in Deus Caritas Est about personnel in Catholic institutions: They must “want to work with the Church and therefore with the Bishop, so that the love of God can spread throughout the world.” And I would have pointed to the vast sociology-of-religion literature demonstrating that faith is so often transmitted by deed and not by word.

Monday’s oral argument lacked these necessary points. While the two Catholic schools in California merit and will likely obtain a (possibly narrow) victory, the written decision could well lack the more convincing — and even inspiring — arguments in favor of a robust, and theologically true and necessary, ministerial exemption. The decision might not bode well for future cases involving religious institutions’ employees other than religion teachers.

Helen Alvaré is a professor at the Antonin Scalia Law School at George Mason University.