Discrimination and the “Ministerial Exception”

The U.S. Supreme Court issued two landmark discrimination decisions in its term that recently came to an end. However, only one will result in more liberty and fewer lawsuits.

For several years, federal agencies and courts were split on the issue of whether the prohibition against discrimination in employment because of sex in Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of sexual orientation or gender identity. Last year, the Supreme Court agreed to hear three cases to settle the matter, and oral arguments were made on October 8.

The cases were R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity

Commission; Bostock v. Clayton County, Georgia; and Altitude Express Inc. v. Zarda. They all involved individuals who claimed that they were fired by employers because of their sexual orientation or gender identity. The Court ruled that discrimination in employment because of sex includes sexual orientation and gender identity. In a 6-3 decision issued on June 15 that covered all three cases, the Court concluded,

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

There are three reasons for believing that that part of the ruling was wrong. One, if Congress intended discrimination in employment because of sex in the Civil Rights Act to include discrimination on the basis of sexual orientation or gender identity, then it would have said so. Two, the Court legislated on behalf of Congress, which has tried numerous times and failed to pass any legislation to protect the rights of LGBTQ workers. Justices Samuel Alito and Clarence Thomas raised both of these points in their dissenting opinion. Three, and most important, since discrimination is not aggression, force, coercion, threat, or violence, the government should never prohibit it, seek to prevent it, or punish anyone for doing it.

The decision of the Court in the first case will result in employers’ having less liberty to fire employees (a right that should in most cases be absolute) and in more lawsuits, since homosexual and transgender workers who are fired by their employers now have an incentive to blame their firing on their sexual orientation or gender identity rather than on their actions.

In two other discrimination cases, the Court ruled the other way.

Agnes Morrissey-Berru taught fifth grade at Our Lady of Guadalupe School and Kristen Biel taught fifth grade at St. James School, both of which are Catholic schools in California. Each teacher had the responsibility of incorporating religious doctrine and worship into her classes. In both cases, the teachers were not offered contract renewals. Each then filed discrimination claims in the U.S. District Court for the Central District of California against her former employer. Morrissey-Berru alleged that her termination violated the Age Discrimination in Employment Act, and Biel alleged that her termination violated the Americans with Disabilities Act.

The federal district court ruled that both claims were barred by the ministerial exception to the First Amendment that exempts religious organizations from anti-discrimination employment laws. Both teachers then appealed to the U.S. Ninth Circuit Court of Appeals in San Francisco, which reversed the lower court rulings because it maintained that the teachers’ duties did not meet the standard required for the ministerial exception. The cases were appealed to the U.S. Supreme Court, and were consolidated on December 18; oral arguments were heard on May 11, and the Court’s decision was issued on July 8.

In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Court, by a vote of 7-2, reversed the decision of the Appeals Court and ruled that “the ‘ministerial exception’ under the religion clauses of the First Amendment forecloses the adjudication of employment-discrimination claims of Catholic school teachers in these cases.”

In reaching their decision, the justices relied on a previous case that established the ministerial exception:

We held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Our decision built on a line of lower court cases adopting what was dubbed the “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees. We did not announce “a rigid formula” for determining whether an employee falls within this exception, but we identified circumstances that we found relevant in that case, including Perich’s title as a “Minister of Religion, Commissioned,” her educational training, and her responsibility to teach religion and participate with students in religious activities.

In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich’s. Although these teachers were not given the title of “minister” and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. 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.

Eric Rassbach is the lawyer at the Becket Fund for Religious Liberty who argued the case for the schools. He called the decision a “huge win for religious schools of all faith traditions” and said, “The last thing government officials should do is decide who is authorized to teach Catholicism to Catholics or Judaism to Jews. We are glad the Court has resoundingly reaffirmed that churches and synagogues, not government, control who teaches kids about God.”

The decision of the Court in this case will result in religious employers’ having more liberty to fire employees and in fewer lawsuits, since workers who are fired by their religious employers will have a harder time proving that they were dismissed for something other than their job performance or religious fidelity.

From a libertarian perspective, the Supreme Court did not go far enough.

Now, it is certainly true that more liberty is better than less liberty. That the state sometimes allows certain entities to discriminate in certain areas against certain people for certain reasons is better than the state’s seldom allowing certain entities to discriminate in certain areas against certain people for certain reasons.

But in a truly free society, all entities that function as employers — churches, (private) schools, corporations, partnerships, LLCs, fraternal organizations, nonprofits, small businesses, sole proprietorships — would have the absolute right to fire, dismiss, terminate, furlough, or lay off their employees. Because no one has the right to obtain or remain in any particular job, a free society must include the right of employers to fire employees at will without any legal recourse or interference from the government.

Why is it that the right of an employee to simply walk away from a job without so much as a moment’s notice is perfectly legal, absolute, and accepted but the right of an employer to eliminate a job is not?

And it is not just in firing that we see this discrepancy.

Why is it that the right of a job seeker to discriminate against a potential employer in any way, for any reason, and on any basis is perfectly legal, absolute, and accepted but the right of a potential employer to discriminate against a job seeker is not?

Why is it that the right of a customer to discriminate against a business in any way, for any reason, and on any basis is perfectly legal, absolute, and accepted but the right of a business to discriminate against a customer is not?

This doesn’t mean that any or all acts of discrimination by employers and businesses would be fair, justified, ethical, moral, or proper. It just means that, as far as the law is concerned, the right of discrimination in hiring and business operation should be absolute.

There should not have to be a ministerial exception to allow religious entities to fire employees. Religious entities should have the right to do so because, in a free society, all employers would have the right to do so.

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