By DEACON MIKE MANNO, JD
The U.S. Supreme Court gave religious schools an early Christmas present on December 18 when it agreed to hear the appeals of two cases coming from California and the Ninth Circuit Court of Appeals. Each involves the question of the classification of teachers in religious schools: Are they mere teachers or do they qualify as “ministers” under the Supreme Court’s Hosanna-Tabor ruling?
Hosanna-Tabor, in case you forgot, was a 2012 case in which the Supreme Court unanimously ruled that religious groups are free to choose their own leaders. Hosanna-Tabor was an Evangelical Lutheran church in Michigan that had employed Cheryl Perich, a “commissioned minister,” to teach fourth-grade religion in its school. Perich was fired for insubordination and disruptive conduct. She filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) which filed suit against the church claiming that it fired her in retaliation for her threatening to file a discrimination claim.
In that case Hosanna-Tabor argued that the “ministerial exception” prevented the court from forcing it to rehire Perich since it allowed religious entities to choose their own leaders. The EEOC counter argued, unsuccessfully, that any minister, including a rabbi, pastor, or priest should be able to sue the church that employs him. Since that ruling courts across the country, both state and federal, trial and appellate, have consistently followed that precedent giving churches, parochial schools, and other faith-based organizations wide berth to hire and fire.
That is until California and the Ninth Circuit got involved.
Kristen Biel was hired as a teacher at St. James Catholic School in Torrance, Calif. Her charge was to teach and foster a Catholic identity to St. James’ fifth graders. She taught the faith and led the students in prayers and worship. When her performance fell below the standards set for her, the school did not renew her one-year contract. In the second case Agnes Morrissey-Berru was hired to teach students at Our Lady of Guadalupe School in Hermosa Beach. She had duties essentially the same as Biel and when the school noticed the academic performance of her students falling, she was demoted to part-time and her one year contract was also not renewed.
Biel filed suit first and was met with the ministerial exception defense, which the district court upheld. Biel then appealed to the Ninth Circuit which reversed. In so ruling the appeals court distinguished Biel’s case from Hosanna-Tabor in that Biel did not hold any title, such as “commissioned minister,” it did not hold Biel out in any way as a minister, nor did it claim that she had any “special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic.”
The dissent argued that Biel knew by the school handbook and the contract she signed that she shared in the school’s mission “to develop and promote a Catholic School Faith Community within the philosophy of Catholic education as implemented…and the doctrines, laws, and norms of the Catholic Church.” It also argued that Hosanna-Tabor was never intended to be as narrowly interpreted as was done in this case.
A few months after Biel, Agnes Morrissey-Berru filed her suit against Our Lady of Guadalupe School. It followed the same pattern; the district court, citing Hosanna-Tabor, ruled for the school and Morrissey-Berru appealed and won a reversal with the court, opining that while Morrissey-Berru had “significant religious responsibilities” to incorporate Catholic values in her teaching, those duties were not religious enough to invoke the constitutional protection as outlined in Hosanna-Tabor.
In the meantime, St. James had asked for a rehearing en banc, that is, by all the judges on that appellate bench, not just a three-judge panel. That request was denied, but nine of the judges filed a scathing dissent arguing that no other circuit or state had adopted such a narrow interpretation of the ministry exception as was done in Biel. Thus by the time the St. James case reach the appellate court, the circuit precedent was set and St. James lost.
Now, here is the interesting part. Both Our Lady of Guadalupe School and St. James Catholic School are represented by the Becket Fund for Religious Liberty, the same firm that represented Hosanna-Tabor Evangelical Lutheran Church in its unanimous victory at the Supreme Court in 2012. Becket filed for certiorari (asking for Supreme Court review) in both the current cases and, as mentioned above, it was granted just before Christmas, but no date for argument has been set.
In its brief for certiorari, Becket argued that Hosanna-Tabor “bars civil courts from adjudicating employment-related cases brought by ‘ministerial’ employees against their religious employers,” noting that “seven federal Courts of Appeals and seven state supreme courts, in cases involving Catholic, Protestant, and Jewish employers and many different kinds of roles, have all concluded that the presence or absence of religious function is the touchstone of the ministerial exception inquiry…function is paramount.”
It went on to argue, “Under the Ninth Circuit’s standard, a religious organization’s employee can hold a ministerial role only if he has a religious title, training, or tax status, regardless of the religiously important function of his position.” It also pointed out that there is now a California appellate court decision, Su v. Stephen Wise Temple, which has adopted the new Biel standard, thus moving further from Hosanna-Tabor. Therefore, it argued, the court must make clear that the actual job function, not the title that the employer had given it, is the central fact at issue.
“Thumbing its nose at the functional consensus, the Ninth Circuit’s approach flatly finds that it is never enough to show an employee carried out core religious functions such as ‘teaching and conveying the tenets of the faith to the next generation’,” the brief continues. “The Ninth Circuit’s rule will also have perverse effects, it will interfere in religious governance by pressuring religious groups, with an eye to avoiding litigation or bureaucratic entanglement rather than upon their own doctrinal assessments,” it concluded.
The Supreme Court was interested enough to agree to hear the case, which doesn’t mean it is settled. Now come the briefs, amicus and otherwise, then oral argument. This is still going to take some time, but we can be heartened that the court has agreed to a review.
The good guys have gotten this far, so let’s hope they’ll ultimately be able to push it over the goal line.
(You can reach Mike at: DeaconMike@q.com.)
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