U.S. Supreme Court hears oral arguments in ‘ministerial exception’ cases

by | May 13, 2020

This week, the U.S. Supreme Court heard oral argument in two consolidated cases that explore the “ministerial exception” to employment laws.  (You can hear BJC Executive Director Amanda Tyler and General Counsel Holly Hollman discuss the arguments in this week’s episode of their essential “Respecting Religion” podcast, which comes out Thursday!) The ministerial exception doctrine, which the Court affirmed in a 2012 case (Hosanna-Tabor), says that scrutinizing the firing of certain ministerial employees of religious institutions would entangle courts too closely with religious questions; and thus employment discrimination claims under Title VII of the Civil Rights Act by those employees cannot be heard. But the precise scope of the exception – exactly which employees are covered? – remains unclear. These new cases raise the question of how courts should go about answering the question of whether an employee is covered by the exception and as a result cannot litigate an employment discrimination claim.

In Hosanna-Tabor, the Court suggested a number of factors to be considered, including the title of the job, the credentials of the employee, the religious function of their job, whether you have to be of a certain faith to qualify for the position, and how the employee presents themselves to the public. But how should courts apply those factors? Are some more important than others? And who gets to decide whether an employment function is religious? Surely the exception does not apply to all employees of a religious institution, but where and how should the line be drawn?

In questioning, the Court explored these areas generally and with respect to these specific cases, which involve lay teachers at a Catholic school.

Here are some of the highlights from the Supreme Court’s transcript, first in questioning of Eric Rassbach, who represents the two schools in these cases:

JUSTICE SOTOMAYOR: I don’t understand what leadership role or proselytizing role these teachers played in simply teaching about religion.


RASSBACH: So — so, Your Honor, they — they absolutely were doing much more than teaching about religion. They were teaching it devotionally, and they were — they were proselytizing. Their job, number one, and their overriding commitment was to — to teach these kids to become Catholic and to believe in the Catholic faith.



JUSTICE GORSUCH: … The next case is going to be a school in which a janitor takes a pledge [that everything they’re going to do is to help teach these kids to be part of the faith], or the school bus driver or the coach, and they all believe sincerely that they are ministers, and you’re going to have us tell them no, your active duties are too de minimis?


RASSBACH: Well, I mean, I think this is part of — part of the issue with — with the use of the word “minister.” This is a kind of immunity that really goes to the kind — kinds of things… you would never contemplate having a governmental entity do. And so, therefore, you know, it’s true that they may well be within their faith tradition a minister, but the term “minister,” as was, you know, explained in… one of the colloquies that Justice Scalia had in Hosanna-Tabor, is that it — that it’s — it’s a legal term here. It’s a… subset of the kinds of things that are done on behalf of the religious community that make it distinctive. So it’s not going to cover the gas station attendant or the — the bus driver. It has to — it has to go to those functions that make religious — religious communities distinctive within our society.

In questioning Morgan Ratner, representing the United States in support of the schools:

JUSTICE THOMAS: … I am perplexed as to what you do, for example, with the chemistry teacher who starts class with a Hail Mary … or the chemistry teacher who’s a nun who starts class with — chemistry class with a Hail Mary, or the lay teacher who teaches religion but does it in a very straightforward, objective way. How would you handle those? I — I don’t see how — what standards a secular court would use to determine which of those is a function, an important duty or function, religious duty or function?


RATNER: Sure, Justice Thomas. So we think that the important religious functions are those of the type that I mentioned before, and then the question in some of these cases that have been hypothesized is just, is that really a meaningful part of a person’s job or, as Petitioner counsel called it, is that just a de minimis part of a person’s job?


If that job is in one of your hypotheticals teaching religion, then, of course, the answer is yes. If that job is teaching something secularly and we’re talking about one prayer, then the — the answer may not be yes….



JUSTICE ALITO: What do you think is the relevance of titles in this inquiry?


RATNER: So, Justice Alito, we think that, of course, all the considerations that this Court mentioned in Hosanna-Tabor, including title, may be relevant. But the best way to think about them is that they may be relevant in illustrating whether someone performs an important religious function. And I think, to do the opposite, to require a title as sort of a separate check box that needs to be ticked off, is going to create a real problem in terms of neutrality among religions. Some faiths have those sorts of formalities. Some faiths don’t.

In questioning Jeffrey Fisher, who represents the employees:

JUSTICE GORSUCH: …What if — what if the members of the congregation believed that all persons are ministers of the faith, bishops maybe even, and that they are all equally capable of teaching religion and — and that’s something they all wish to do part-time while also teaching other subjects?


FISHER: … It’s not whom the religion considers to be its ministers or even whom the religion considers to be performing its most important religious functions.


It’s who among employees of religious employers are performing such — such vital duties to the establishment of the church that any qualification requirements or any legal enforcement having to do with their rights or — or qualifications would necessarily run afoul of the Establishment Clause?


And I think if we just get away from labels, I wholeheartedly agree there are enormous entanglement questions in asking what is important or — or — or even who — who religions consider to be their minister.


I think the very problem with the other side’s test… is it is very clear that …religious employers sincerely and deeply believe that all of their nurses, all of their teachers, even all of their administrators and janitors are performing important religious functions in terms of the religious mission of that church, and so that can’t be the question.


And so I think the question is the legal question arising from the First Amendment as to who is involved with the establishment of the church. That’s the only way you can get to immunity.

You can read the entire transcript here, or listen to audio of the oral argument here.

Check out BJC’s resource page on Hosanna-Tabor for more background on this doctrine, and be sure to listen to this week’s episode of the Respecting Religion podcast for BJC reactions to the arguments in these cases.

A decision from the Court is expected by the end of June.