Today, in the case Our Lady of Guadalupe School v. Morrissey-Berru, the U.S. Supreme Court re-explained and strengthened the “ministerial exception,” a legal principle that recognizes the right of ministries to condition employment on adherence to a ministry’s statement of faith and religious practices. Here is (1) what the court decided in Lady of Guadalupe, (2) how the case interplays with Bostock v. Clayton County (which extended employment discrimination protections to members of the LGBTQ community), and (3) some thoughts on the future of religious liberty after these landmark cases.

What did the Court decide in Lady of Guadalupe?

This case involved two teachers, Kristen Biel and Agnes Morrissey-Berru, who taught at Catholic elementary schools. When the schools did not renew their contracts, both pursued age discrimination claims. The U.S. Supreme Court previously ruled in Hosanna- Tabor Evangelical Lutheran Church and School v. EEOC (2012) that a teacher at a Lutheran school was a “minister” for purposes of the ministerial exception and was, thus, barred from bringing a discrimination claim. However, in Hosanna-Tabor, the court set out four factors for determining whether or not an individual is a “minister”: (1) the individual’s job title, (2) the individual’s religious training, (3) whether the individual held herself or himself out as a minister, and (4) the individual’s actual role in communicating the faith and carrying out the ministry’s religious mission.

When considering Our Lady of Guadalupe Schools, the 9th Circuit Court of Appeals treated these four factors like a four-point legal checklist that required all boxes to be checked and found that these teachers did not meet all four criteria. Therefore, the 9th Circuit held that the ministerial exception did not apply. This decision was concerning because many of the core staff at churches and other ministries do not have pastoral-sounding job titles and are not required to complete a significant amount of “religious” training, such as a college degree or an advanced degree. I mean, Jesus Himself didn’t exactly sport a diploma from a prominent seminary! Fortunately, the Supreme Court clarified that these four factors are to be analyzed together with a strong emphasis on the 4th factor. Here’s the relevant section from the majority opinion written by Justice Alito:

What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.

In sum, the Court clarified and strengthened the ministerial exemption by focusing the analysis on the actual responsibilities and work of an employee. If a teacher at a private religious school (or a similar position at other ministries) is tasked with teaching the faith, praying with people and furthering the religious mission of the ministry, then that employee clearly falls under the “ministerial exception” and may not bring an employment discrimination claim against the ministry. Justice Alito summed up the Court’s reasoning as follows:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

How does Lady of Guadalupe affect the Bostock case?

I previously wrote an article summarizing the Bostock case, and I encourage you to read it as well. In sum, Bostock extended general employment discrimination protections to individuals in the LGBTQ community but did not carve out religious liberty protections for ministries. Justice Gorsuch, who wrote the majority opinion, essentially kicked that can down the road, stating: “…[B]ut how these doctrines [Title VII exemptions, the ministerial exception and the Religious Freedom Restoration Act] protecting religious liberty interact with Title VII are questions for future cases…” It is important to note that Lady of Guadalupe specifically addressed age discrimination claims, but the principles in the case are directly applicable to a sex discrimination claim (which now, according to Bostock, includes sexual orientation and gender identity) filed against a ministry. Though I imagine litigation will be filed to test this theory, the ruling in Lady of Guadalupe strongly signals that a sex discrimination claim brought by a church employee or Christian school teacher who decides to identify as LGBTQ would be barred by the ministerial exception. That said, there is still some question whether a sexual harassment or hostile work environment claim (perhaps not using an employee’s preferred pronouns) is barred by the ministerial exception. I don’t want to get into the weeds too much on this; but, if you would like to study that issue further, here is a law review article written from a more secular perspective. In sum, Bostock extended employment discrimination protections to members of the LGBTQ community working in for-profit businesses, and Lady of Guadalupe strengthened the right of ministries to hire and fire key ministry positions according to their strongly held religious beliefs.

What are the practical takeaways?

After reviewing both the Bostock and Lady of Guadalupe cases, here are some key takeaways for religious liberty and ministries in the days ahead:

• A Judicial “Utah Compromise”: As predicted by journalist and legal analyst David French, the U.S. Supreme Court may be creating a judicial version of the “Utah Compromise.” In 2015, the Utah legislature passed a law (1) granting discrimination protections to the LGBTQ community and (2) carving out strong religious liberty protections for ministries. I don’t think it is controversial to say that the U.S. Supreme Court is now a political as well as a judicial body in the sense that the Court is sensitive to the cultural mood. And, Bostock and Lady of Guadalupe, taken together, seem to suggest that the Roberts court is attempting to find middle ground in the clash between religious liberty and sexual freedom. I, of course, do not agree with the Bostock decision for reasons stated in my previous article, but this approach is certainly preferable to one in which the Supreme Court rules across the board against religious freedom for ministries. This prediction about a judicial “Utah compromise” may be wrong, but today’s decision seems to point toward its accuracy.
• Some Employment Law Pointers. Religious organizations should review their employment contracts and handbooks for the following: (1) a clear description of the organization’s religious mission; (2) an expectation that employees serve that mission; (3) a list of religious duties for anyone teaching or communicating the faith; (4) a requirement that employees model the faith in their teaching, worship and personal lives, and (5) a statement that an employee’s performance will be reviewed according to the above criteria. All of these factors were cited positively in Lady of Guadalupe, so religious employers should take note.
• The Importance of Explaining our Faith in a Plural Society. Justice Alito, in his majority opinion, cited a number of amicus or “friend of the court” briefs from Christian and other faith-based groups explaining their religious practices and why a four-point checklist approach would punish religious groups with less formal training and ordination requirements. Five members of the Supreme Court are Catholic, three members of the court are Jewish, and Justice Neil Gorsuch has attended an Episcopal church. So, many Protestant groups made sure the high court understood their polity and employment practices. Here’s the lesson for church leaders and other committed Christians. We (and I have been guilty of this as well) get comfortable in our Christian “bubble” and often expect our non-Christian neighbors to understand Christianity and our religious practices. This case strongly suggests a different approach. We should routinely and winsomely explain our faith to an increasingly plural society.

In conclusion, today’s decision is very helpful to churches and religious schools, but questions remain about the interplay of Bostock and Lady of Guadalupe. And, we can expect the Court to hear and decide such cases next term or in the years ahead.

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