The recently completed term of the U.S. Supreme Court ended with a flurry of decisions involving the relationships among religious institutions, civil government and the individuals who interact with both. People affiliated with Catholic schools—teachers and administrators, pastors and bishops, parents and students—were particularly affected by the court’s decision in the combined cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel.
Both cases concern what is known as the “ministerial exception,” and both have been the cause for celebration and consternation. Simultaneously, these cases present a real opportunity for the Catholic Church to model to the broader world how to “be church,” an opportunity to build up a community dedicated to doing substantial justice for its members and affiliates without recourse to civil courts and secular adjudication.
Carving Out the Ministerial Exception
The ministerial exception is a judge-made rule derived from the First Amendment’s protection of religious exercise and its limits on state involvement with religious institutions. It holds that courts cannot adjudicate disputes between religious employers and their employees when those employees are doing the core religious work of the institution.
This rule is marked by tensions, though. State and federal governments should not dictate who is best fitted to lead a religious institution or approve or license preaching and prayers. But the state has a legitimate concern that mischievous employers could “find religion,” declare their employees to be ministers and simply do what they will without recourse.
The Supreme Court tries to navigate these tensions, rejecting the broadest claims of immunity while preserving a core institutional autonomy for religious institutions. Writing for the majority, Justice Samuel Alito emphasized that the First Amendment “does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission.” This includes the ability to choose the individuals who exercise fundamental or essential “key roles.”
The ministerial exception is rooted not in a desire to eliminate the rights of teachers and other church employees but in a genuine concern for protecting the integrity of the decision-making processes of religious institutions.
Understood thus, the ministerial exception is not about ministers at all. It is rooted not in a desire to eliminate the rights of teachers and other church employees but in a genuine concern for protecting the integrity of the decision-making processes of religious institutions. Moreover, the exception did not emerge arbitrarily but was part of a broader line of cases dealing with the autonomy of religious bodies in a free and pluralist society.
Questions about resolving intra-ecclesial disputes arose with regularity in the middle of the 19th century. Numerous religious congregations fractured over disputes about slavery and the place of Black Americans. These disputes lead regularly to court cases as divided congregations dueled over the property and other assets of their communities.
The issue reached the Supreme Court in the 1871 decision in the case Watson v. Jones. Applying the First Amendment, the court concluded that secular courts must generally defer to decisions arrived at through internal church processes. If courts were to inquire into the reasons a church made its internal decisions, they would be forced to take sides in religious disputes. This would mean settling, as a matter of civil law, what a religious institution’s doctrines actually are or how they are to be applied. This was anathema in a constitutional system that prohibited state establishment of religion and ensured its free exercise.
Over the next century, a general consensus emerged concluding that courts could not intervene in any internal disputes of religious institutions if such intervention would require evaluating religious doctrine. Judicial intervention could only occur when based on neutral legal principles without resort to religious doctrine, practice or belief.
This consensus was challenged when disputes appeared in which employees claimed unlawful discrimination. Employment laws generally protected employees from discrimination on a wide assortment of classifications—race, sex, ethnicity, pregnancy, marital status, illness, age, religion and disability, among others. In the Civil Rights Act of 1964, Congress provided some protection for religious employers. A statutory exception allowed discrimination on the basis of religion for jobs where religion is a legitimate qualification. Catholic Churches can thus refuse to hire Lutherans as parish priests, and mosques are not required to hire a Unitarian Universalist as their imam.
Religious institutions often make employment decisions based on religious motivations or doctrine that do not map neatly onto nondiscrimination law.
Still, religious institutions often make employment decisions based on religious motivations or doctrine that do not map neatly onto nondiscrimination law. For example, a religious institution that limits ordination to men is not discriminating against women on the basis of religion, for it would refuse ordination both to its own co-religionists as well as women of a different religion. It remains, however, a potential form of sex discrimination and thus subject to liability without the benefit of the statutory exemption. Indeed, shortly after passage of the Civil Rights Act, courts encountered nonreligious claims brought by employees against religious institutions. (The earliest case involving the ministerial exception, for example, was McClure v. Salvation Army, decided by the Court of Appeals for the Fifth Circuit in 1972, in which a female minister brought a sex discrimination claim against the Salvation Army.)
Judges questioned their competency to intervene in these kinds of disputes. If courts could not adjudicate property disputes when questions about religious doctrine were involved, it made little sense to do so when employment matters were involved, at least as regards to key employees. Courts concluded that members of the clergy and similar persons had to be exempt from nondiscrimination laws (hence the term “ministerial”).
Recognizing that different religions have different answers to what roles count as “ministerial,” the exception was expanded to cover numerous positions understood as fundamental for religious missions: church teachers and principals; music or choir directors; hospital chaplains; kosher preparation supervisors; and even public relations staff.
Teachers are key employees, and judicial intervention into their employment would undermine the core ability of religious institutions to govern themselves.
The Supreme Court ratified these decisions in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission in 2012. There the court concluded that a “ministerial exception” did apply as a means of ensuring that religious institutions can govern themselves, worship as they see fit, and teach or proclaim their doctrines. These same rationales underlie the recent decision in Morrissey-Berru and Biel.
For the court, the exception is not about who an employee is but what job the employee does. Religious institutions need the freedom to set their own leadership and to determine their own doctrines and practices. This includes the need to choose for themselves who will teach and transmit those doctrines and practices. Teachers are key employees, and judicial intervention into their employment would undermine the core ability of religious institutions to govern themselves.
We can see this play out in the questions raised by Morrissey-Berru and in Biel. In both cases, the teachers claimed they were fired for unlawful reasons; age discrimination in the case of Agnes Morrissey-Berru and disability or illness discrimination for Kristen Biel. If true, such discrimination would be not only unlawful but highly immoral. It would be a gross violation of Catholic teaching and contrary to the dignity of Ms. Morrissey-Berru and Ms. Biel as humans and as co-laborers with God and God’s people.
Thus, it should come as no surprise that the schools and the archdiocese deny that such discrimination occurred. Rather, they argued that both teachers were let go because of performance-related issues. They claimed that Ms. Morrissey-Berru had difficulty administering a new curriculum and that Ms. Biel failed both to follow the curriculum and to keep order in her classroom.
Such disputes are normal in the course of employment litigation. Employers routinely offer nondiscriminatory justifications for adverse decisions. Courts evaluate these justifications to determine if they are legitimate or if they merely mask unlawful discrimination. Determining whether a religious qualification is really part of the job or is merely being used as a pretext in these and other teacher-employment cases, however, would require courts to evaluate doctrinal issues, which is exactly what courts are not competent to do.
The ministerial exception presents an opportunity for Catholic leaders to demonstrate how religious communities can effectively govern themselves with integrity and justice.
Resolving these cases in favor of the teachers would require a court to investigate and determine that Catholic administrators—and ultimately the archbishop—at a Catholic school misunderstood or misapplied Catholic doctrine and practice in the field of education.
Catholic schools hire for mission. Mission is not limited to a set class period on religion or an occasional liturgical service but spreads across the school experience. This approach is not limited to Catholic schools. It is the experience, if not the entire justification, of religious schools generally in the United States. And when an employment dispute arises, it will be almost always the case that resolution of that dispute will involve religious doctrine and practice because it will require courts to review a religious official’s judgment about the ability of someone to practice, model, teach and proclaim a religious mission. Courts simply are not equipped to judge or resolve such disputes.
The robust application of the exception makes sense but is perhaps also unsatisfactory. This exemption, while bringing the civil judicial process to a conclusion, is not intended to be the end of the road. Yet too often it is. Recall that the whole point of the exception is religious autonomy. Autonomy is served best when religious bodies actually exercise it to govern themselves responsibly. If bishops and religious superiors simply rest in the blessed assurances of the Supreme Court that their teachers and other key employees cannot sue them, they are missing a key opportunity.
Autonomy and Accountability
The ministerial exception presents an opportunity for Catholic leaders to demonstrate how religious communities can effectively govern themselves with integrity and justice. Distrust and fear emerge in the public conversation about this issue because of the concern that “religious liberty” is code language for “religious impunity.” Bishops, superiors and administrators of Catholic institutions know that discrimination is wrong; the fact that civil courts cannot remedy such discrimination does not mean no one can.
Instead, imagine a world where bishops and superiors institute formal dispute resolution processes to protect employees of Catholic schools and other institutions. Well-regarded arbitrators can manage such tribunals, assisted by appropriate professionals knowledgeable about the institution where a dispute arises—teachers, for example, in a dispute brought at a school. They can be empowered to compel Catholic institutions to provide documents and testimony. Similarly, they can be empowered to offer real remedies when unjust discrmination is found to have occurred—back pay, reinstatement, lost insurance costs, etc. Even if bishops or other superiors reserve to themselves the final decision, a neutral person hearing both sides, receiving relevant evidence and offering an independent conclusion is a crucial element of true justice.
Let us be a responsible member of a pluralist and diverse society, demonstrating with integrity and authenticity what it means to be the people of God.
This type of process is not something new for the church, nor one alien to its sensibilities. Historically, the church has long operated courts and tribunals to resolve disputes among its members. Today, church courts continue to adjudicate a number of disputes, the most prominent being annulments. Catholic leaders also have direct experience with the use of lay experts to make, ratify or advise on their decisions. Every parish and diocese has a finance council; most also have parish pastoral councils. Bishops are advised by presbyteral councils and religious superiors by consultors.
Moreover, bishops can even go a step further and concede some level of civil oversight by committing themselves to radical transparency. As much as the Supreme Court has protected church autonomy, it has also recognized that if a dispute emerges under “neutral principles of law” that do not involve religious doctrines, courts can hear those cases. Here, bishops can designate these tribunals by contract as arbitration bodies subject to the Federal Arbitration Act.
That act broadly defers to arbitration awards but allows them to be set aside when there is fraud, collusion or duress. Thus, bishops would not have to worry about their religious determinations being reviewed or overruled by a secular judge, but at the same time they would be ensuring the broader church and secular society that the systems they set up are being held accountable for integrity and honesty in their proceedings.
This is an opportunity but not a panacea. If our objection to the bishops’ use of the ministerial exception stems from a disagreement with them over who actually should be a minister or the extent to which church leadership should recognize or accommodate L.G.B.T. rights, for example, this is not a solution. Those debates will require long and difficult conversations, spiritual dialogue, mutual charity and church-wide discernment. If, however, our concerns also include the transparency of church decisions and how we model authentic Gospel values in our institutions, then this can be a first step in that process.
Resort to civil courts is problematic. This does not mean, though, that Catholics should resign themselves to subpar outcomes or the lack of recourse for apparently unjust decisions. Rather, bishops can use this opportunity for self-government in the ways the First Amendment imagines. Religious liberty exists so that the church can be a responsible member of civil society. So let us be a responsible member of a pluralist and diverse society, demonstrating with integrity and authenticity what it means to be the people of God.