The Supreme Court issued a ruling on Wednesday that will come as a huge relief to Catholic schools, confirming that their religious identity gives them the freedom to decide which teachers to hire and fire — with no interference from the federal government.
Just a few weeks ago, the court’s ruling in Bostock v. Clayton County stunned the country when it redefined discrimination in employment “because of sex” to permit claims of discrimination based on an employee’s asserted sexual orientation or gender identity.
This apparently gave the green light to “trans” teachers, or those in same-sex marriages, to work in religious schools, safe in the knowledge that they could not be dismissed on religious grounds. Catholic schools across the United States were preparing to be targeted by LGBT activist teachers determined to exploit Bostock.
But Wednesday’s ruling in the consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel places power back in the hands of Catholic schools, by confirming that the First Amendment protects their right to decide who imparts the faith to the next generation without the government second-guessing those decisions.
The cases involved employment decisions at two Catholic parochial schools in Los Angeles. Both schools decided not to retain their fifth-grade teachers — citing inferior performance. In one school, Our Lady of Guadalupe, the teacher had her contract terminated because she failed to implement a new reading program aimed at improving academic rigor. In the other, St. James, the school failed to renew the contract of a teacher whose classes were described as “chaotic” and “out of control”.
Both teachers filed lawsuits in federal court under federal anti-discrimination laws. In Our Lady of Guadalupe, the teacher claimed she was fired because of her age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). In St. James School, the teacher — who has since passed away after battling breast cancer — argued that she was fired in violation of the Americans with Disabilities Act (ADA).
The Supreme Court refused to entertain the complaints. Writing for the 7-2 majority, Justice Samuel Alito explained that a protection derived from the First Amendment’s Free Exercise and Establishment Clauses, known as the “ministerial exception”, prevented both cases from going forward in federal court. “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,” explained Alito.
The ministerial exception is not some modern-day judicial fabrication but is grounded in the original meaning of the religion clauses of the First Amendment. The founders, familiar with life under the established Church of England, opposed the creation of a national church. Forbidding the “establishment of religion” and guaranteeing the “free exercise thereof” guarded against the federal government playing a role in filling ecclesiastical offices.
Back in 2012, the Supreme Court, in Hosanna-Tabor v. EEOC, unanimously confirmed the constitutional basis for the ministerial exception. “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs,” explained Chief Justice John Roberts his Hosanna-Tabor opinion.
The plaintiff in Hosanna-Tabor was a religion teacher at a Lutheran school. After Hosanna-Tabor, it should not have been difficult to understand that the ministerial exception covered religion teachers at Catholic schools too. But Our Lady of Guadalupe and St. James originated in California and the judges of the Ninth Circuit court of appeals often have trouble applying Supreme Court precedent.
The high court’s decision is welcome, but not exactly earth-shattering. Similar to the teacher in Hosanna-Tabor, the aggrieved ex-teachers in Our Lady of Guadalupe and St. James had exercised important religious functions of worship, ritual, and expression. They each taught the faith to their fifth-grade students and were expected to personify Catholic values and imbue every subject they taught with Catholic beliefs. They accompanied their students to and in Mass. And they led their students in prayer daily.
In other words, teachers played an important role as an instrument of the Catholic Church’s religious message and as a leader of its worship activities.
Because of these important religious functions, the high court appropriately considered the teachers “ministers” and recognized that the schools had the exclusive authority to decide whether or not to invite them back the following school year. The government could not second-guess the decisions.
This makes perfect sense. Catholic schools have the weighty task of passing on sound Catholic teaching to students living in an increasingly secular world. When it comes to the expression and inculcation of religious doctrine, the messenger matters. This is particularly clear when passing on church teaching regarding the nature of marriage and human sexuality.
But all this appeared to be undermined by the shocking decision in Bostock v. Clayton County.
Just a few weeks ago, Justice Alito in his scathing dissent worried about applying the court’s ruling to the hiring and firing of teachers at religious schools. “If a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone sex reassignment,” observed Alito. Fortunately, despite the damage done by his majority opinion in Bostock, Justice Neil Gorsuch left open a window. “Doctrines protecting religious liberty like the ministerial exception interact with Title VII are questions for future cases,” Gorsuch wrote. Alito’s majority opinion in Our Lady of Guadalupe School is the guide for these “future cases.”
Wednesday’s decision confirms that the Catholic Church — through its schools — has a constitutional right to self-governance that includes the ability to select, and to be selective about, those who will teach the faith. It’s an affirmative defense that will protect Catholic schools from having to employ teachers who choose to live their lives in a way that’s deliberately inconsistent with Catholic teaching.
Andrea Picciotti-Bayer is a legal analyst for the Judicial Education Project.