The Supreme Court today handed Catholic institutions two big wins signaling more freedom to decide both about their employees and their operations.
The opinion in the Little Sisters of the Poor v. Pennsylvania is more about administrative procedure than about the substance of religious freedom. The opinion in Our Lady of Guadalupe School v. Morrissey-Berru (OLOG), however, goes straight to the heart of the religious freedom of religious institutions, schools in particular. I will discuss this latter opinion first, and the Little Sisters second.
OLOG is extraordinarily important for the future of religious institutions’ ability to determine their personnel. By a vote of 7-2 — with Justices Elena Kagan and Stephen Breyer joining the Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — the Court held that the First Amendment’s “ministerial exception” gives two Catholic elementary schools the power to decide about the hiring and firing of their teachers, free from state interference. The “ministerial exception” is the First Amendment doctrine that protects religious institutions from employment discrimination lawsuits brought by persons who are deemed “ministers” by the Court. It flows from both constitutional religion clauses’ guarantee that the government must not interfere in “matters of faith and doctrine” or “church governance.”
What is important in OLOG is not only today’s win, but what the case signals for future disputes involving, potentially, employees who are not teachers, or teachers who do not teach religion, or any employee at the wide variety of Catholic educational, health care and social services institutions. The Court’s 2012 Hosanna Tabor decision announcing the existence of the ministerial exception did not provide as many clues regarding these disputes as provided in today’s opinion.
OLOG uses language possibly sufficient for Catholic and other religious institutions to shield from state authority religious institutions’ ability to claim that any employee who plays a role in “conveying the Church’s message and carrying out its mission” is covered by the ministerial exception. Thus a Catholic institution’s decision about hiring and firing such an employee would prevail over the state’s.
Anyone familiar with the Catholic theology concerning the missions and works of all of our service institutions will understand that category of employees might include a wide variety, from nurses to administrators to social services counselors and others. As Pope Benedict XVI reminded us in his encyclical Deus Caritas Est, and as Pope Francis reminded us in his first homily as pope (and in several later documents issued by his Congregation for Catholic Education) every employee at a Catholic institution is charged to be a witness to the faith. Every religious institution participates in the “ecclesial reality” that is the Church. Otherwise, our institutions would become (in Francis’ memorable words) just another “compassionate NGO [nongovernmental organization],” delivering useful services, but without witnessing to Christ.
Today’s majority opinion does not go all the way toward definitively giving religious institutions all the freedom they require to constitute true communities of witness, but it goes further than Hosanna Tabor. The majority clarified that Hosanna Tabor did not demand a “rigid” formula for courts evaluating ministerial exception claims by religious employers. Hosanna Tabor had held that a Lutheran schoolteacher was a minister, making reference to her extensive training, her being “called” by her church, her self-identification and her functions. The 9th Circuit — the lower court that had previously decided the OLOG case — applied these categories to the Catholic school teachers and concluded that their situations did not match the Lutheran teacher’s. End of this article